Re MURANGWA (Fond)

Re MURANGWA (Fond)

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2025-02-12 - Case/document no.: RS/INCONST/SPEC00001/2022/SC - Collection: Supreme Court

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Re MURANGWA (Fond) [Rwanda SUPREME COURT – RS/INCONST/SPEC00001/2022/SC – (Ntezilyayo, J. P., Cyanzayire, Mukamulisa, Hitiyaremye and Kazungu, J.) 22 December 2023] Criminal procedure – Investigation – Search – A search is an investigative activity carried out by an investigator or prosecutor based on a search warrant issued by the public prosecution – It is conducted in order to find or supplement evidence in a criminal case. Constitution – The principle of inviolability of human rights – Searching – The fact that a search warrant is issued by a particular authority is not considered a constitutional right of the person subject to the search. However, it does place a responsibility on the authority conducting the search to act professionally and in accordance with the law. Constitution – Right to due process of law – The Principle of presumption of innocence – While investigative agencies may collaborate with the media to inform the public about ongoing investigations, they must take every precaution to uphold the principle that a person is presumed innocent until proven guilty. Constitution – Petition to declare provisions of the law unconstitutional – Petition to the Constitutional Court – A litigant cannot petition the Constitutional Court to change, delete, or add words to the provisions of the law simply because they find the wording uncomfortable or because the

legislator did not use their preferred wording. Facts: Murangwa petitioned the Supreme Court seeking to have the provisions of the law related to searches conducted with or without a warrant declared unconstitutional. He also requested an order directing the government and investigative institutions to stop parading suspects before the press and compelling them to speak. Additionally, he sought an order requiring media outlets, social networks—including YouTube—and any other parties to completely delete from their archives all photos and videos of arrested suspects. The articles he claims are unconstitutional include Article 10, Paragraph 3 (a, b, and c), paragraphs 5, 7, and 8 of Law No. 12/2017 of 07/04/2017 establishing Rwanda Investigation Bureau and determining its mission, powers, organisation and functioning; and articles 38, 55, 56, 57, 60, 61, and 70 of Law No. 027/2019 of 19/09/2019 relating criminal procedure. He argues that these provisions are inconsistent with Articles 13, 14, 23, 24, 29, 43, and 61 of the Constitution of the Republic of Rwanda. The petitioner argues that Article 10 of Law No. 12/2017 of 07/04/2017 violates constitutional rights, as it regulates the grounds and circumstances under which the Rwanda Investigation Bureau can search a person or property, enter a building, or conduct a search without a warrant. He contends that this provision is

relevant to Articles 38, 55, 56, 57, 60, 61, and 70 of Law No. 027/2019 of 19/09/2019, as these articles pertain to searches of places suspected of being involved in the commission of an offence. The petitioner also points out that these articles allow search warrants to be issued by an executive administrative body, while Article 43 of the Constitution states that the judiciary is the guardian of human rights and freedoms, and therefore should be responsible for issuing such warrants.

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He further argues that the responsibility for issuing a search warrant should rest with the court, upon request by the public prosecutor, investigator, or police, and that the warrant should only be issued after the judge has been presented with valid reasons. This ensures accountability for those who fail to comply with the court’s limits. Under the current practice, if the issuer of the search warrant violates the suspect's rights, there is no supervisory body to reprimand or hold them accountable, as they cannot punish themselves—this, he contends, is inconsistent with Article 61 of the Constitution. He adds that allowing the investigator or public prosecutor to conduct searches poses the risk that they may conceal exculpatory evidence. Therefore, search warrants should be issued by the court, specifying what is to be searched, to prevent errors or misconduct by the public prosecutor or the Investigation Department. It is further argued that during any search, whether with or without a warrant, the principle of the presumption of innocence must be upheld until the competent court convicts the suspect, as provided by the Constitution and various international conventions signed by Rwanda. Forcing a suspect to speak to the press violates the principle of non-self-incrimination, as the Investigation Bureau and the Prosecution are responsible for conducting investigations,

gathering evidence, and prosecuting crimes. This practice allows the media to act as a surrogate court, potentially influencing public opinion and, in turn, affecting the impartiality of the court during the trial. The petitioner concludes by requesting that the Court clarify how the terms "reasonable grounds," "substantial evidence," and "reasonable evidence," as used in Article 10, Paragraphs 3(a), (b), (c), Paragraph 5, Paragraph 7, and Paragraph 8 of Law No. 12/2017 of 07/04/2017, should be interpreted in accordance with their legal scope. This clarification, he argues, is necessary in the interests of justice and the proper application of the law. The representatives of the Rwandan government in this case argue that the petitioner has failed to prove that the alleged provisions are unconstitutional. They assert that these provisions primarily address the structure of the Prosecution Authority, positioning it as part of the executive administrative organ, while neglecting to recognize that it is a part of the Judiciary. They further state that the difference between criminal prosecution procedures in Rwanda and other countries lies in the fact that, in Rwanda, the verification of search warrants is conducted by the courts after the investigation, whereas in other countries, such verification or interception of communications is typically authorized by a judge beforehand.

They contend that the method used in other countries should not take precedence over Rwanda's approach, which facilitates operations and collaboration among institutions. They further argue that search warrants issued in Rwanda should not be compared to those from other countries, as Rwandan search warrants are provisional, requiring that the accused be promptly presented to the court for a decision. This underscores that the structure and powers of the judicial system do not permit judges to leave the court to conduct investigations; these responsibilities are designated to the Investigation Bureau and the Prosecution. Therefore, even though Rwanda's procedures may not be widely adopted elsewhere, they are efficient and promote complementarity among institutions, and do not contain any inconsistencies with the Constitution. The Government of Rwanda also argues that granting courts the responsibility of issuing search warrants would involve them in investigations before any claims are filed, which could compromise their independence and impartiality. This, they contend, would contradict Article 61 of the Constitution, which ensures collaboration, complementarity, and independence among branches of government. Therefore, the government sees no reason to transfer investigative duties

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to the judiciary. Instead, the courts should retain the authority to review whether investigations are conducted in compliance with the law, ensuring that even suspects who claim injustice have the opportunity to present evidence of such claims. Regarding searches conducted without a warrant, the representatives of the Government of Rwanda argue that such actions do not violate the Constitution, whether in Article 61 or in the submissions made by the petitioner. They maintain that it would be inappropriate to remove the contested articles because the Constitution itself allows for these laws in Articles 23 and 43, and these laws provide the necessary details that the Constitution, given the hierarchy of norms, could not explicitly outline. Regarding the presumption of innocence, the representatives of the Government of Rwanda clarify that the law specifies how information related to the commission of a crime is conveyed. Before a suspect defends themselves, they must first be informed of the charges against them, be notified that they are under questioning, and be made aware of their rights, including the right to remain silent, the right against self-incrimination, and the right to legal representation. This reflects the protection of due process rights as provided in Article 29 of the Constitution. They further explain that providing information does not imply that it must be

made public through the press, nor that the person giving it should be held in detention; rather, it is important that the person provides the required information when requested to assist the investigation. They conclude that the contested article does not, in any way, mandate that a suspect must provide their defense in the presence of the press, and the petitioner has not cited any legal provision that requires such. Therefore, they urge the Supreme Court to reject the petitioner’s request to instruct government agencies not to parade suspects before the press, arguing that this issue is unrelated to the subject matter of the petition. Held: 1. A search is an investigative activity carried out by an investigator or prosecutor based on a search warrant issued by the public prosecution. It is conducted in order to find or supplement evidence in a criminal case.

2. The fact that a search warrant is issued by a particular authority is not considered a constitutional right of the person subject to the search. However, it does place a responsibility on the authority conducting the search to act professionally and in accordance with the law.

3. While investigative agencies may collaborate with the media to inform the public about ongoing investigations, they must take every precaution to uphold the principle that a person is presumed innocent until proven guilty.

4. A litigant cannot petition the Constitutional Court to change, delete, or add words to the provisions of the law simply because they find the wording uncomfortable or because the legislator did not use their preferred wording. Petition to declare provisions of the law unconstitutional lacks merit. A petition seeking a direction purely in the interest of the law should not be considered. Statutes and statutory instruments referred to: Constitution of the Republic of Rwanda of 2003 revised in 2015, articles 3, 13, 14, 23, 24, 29, 41, 43, 61 and 142;

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European Convention on Human Rights, article 8; Law Nº 027/2019 of 19/09/2019 relating to the criminal procedure, articles 17, 38, 45, 47, 54, 55, 56, 57, 60, 61, 64, 70, 73, 76 and 107; Law N°30/2018 of 02/06/2018 determining the jurisdiction of courts, articles 65 and 73; Law nº12/2017 of 07/04/2017 establishing the Rwanda investigation bureau and determining its mission, powers, organisation and functioning, articles 3, 9 and 10. Other statutes referred to: Article 32, 87 et 88 du Code d’Instruction Criminelle mise à jour au 07/08/2018; Article. 10, al.4 du Code de Procédure Pénale (Loi No 1/09 du 11/05/2018); Article 81, al.1, du Code de procédure pénale, édition 2016; Article 12, 16 et 177 du Code de Procédure Pénale du 27 Juillet 2005; Article 47 of the Criminal Procedure Rules & article 8 of the Police and Criminal Evidence Act 1984, 2023 version; Criminal Procedure Act, 1977, article 21. Cases referred to: Re Fast Truck Interior and Hardware Ltd RS/INCONST/RCOM00001/2022/SC, rendered by the Supreme Court on 19/05/2023 Re Kabasinga Florida, RS/INCONST/SPEC00003/2019/SC, rendered by the Supreme Court on 04/12/2019. Re Murangwa Edward, RS/INCONST/SPEC00001/ 2019/SC, rendered by the Supreme Court on 29/11/2019. Re Mugisha Richard, RS/INCONST/SPEC00002/ 2018/SC, rendered by the Supreme Court on 24/04/2019. Re Murorunkwere Spéciose, RS/INCONST/PÉN0001/08/CS, rendered by the

Supreme Court on 26/09/2008. (CCT253/15) [2016] (9) BCLR 1237(CC); 2016(2) SACR 473(CC) (27 July 2016), Minister of police and Others v Kunjana. Ngqukumba v Minister of Safety and security and Others ([2014] ZACC 14). (Application no 37971/97), Société Colas Est and others v. France, judgment Strasbourg 16 April 2002, paragraph 46. 11S v Coetzee and Others (CCT50/95) [1997] ZACC 2; 1997 (4) BCLR 437; 1997 (3) SA 527 (6 March 1997). 389U.S.347(1967), Katz v. United States, rendered by the Supreme Court on of the United States of America on 26/09/2008; 367U.S.643 (1971) Mapp v. Ohio No.236 Argued March 29,1961 rendered by the Supreme Court on of the United States of America on 19/06/1961; UK Law Commission Report No 396, search warrant, 7 October 2020, p.129, para 5.70; Gaertner and Others v. Minister of Finance and Others (CCT 56/13) [2013] ZACC 38; 2014 (1) SA 442 (CC); 2014 (1) BCLR 38 (CC) (14 November 2013); Mistry v Interim National Medical and Dental Council and Others (CCT13/97) [1998] ZACC 10; 1998 (4) SA 1127; 1998 (7) BCLR 880 (29 May 1998); Tinto v Minister of Police (EL18/2012, ECD 318/2012) [2013] ZAECELLC 8; 2014 (1) SACR 267 (ECG) (15 October 2013);

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Minister of Police and Others v Kunjana (CCT253/15) [2016] ZACC 21; 2016 (9) BCLR 1237 (CC); 2016 (2) SACR 473 (CC) (27 July 2016). Authors quoted: Michel Franchimont et les Autres, Manuel de procédure pénale, Bruxelles, Larcier,2012, p. 515; John M. Scheb and John M. Scheb, Criminal Law and Procedure, Toronto, Thomson and Wadsorth, 2005, p.380; Etienne du Toit and Others, Commentary on the Criminal Procedure Act, Juta, Cape Town, 1996, p. 2-3. Judgment I.

BACKGROUND OF THE CASE [1] On 15/01/2022, Murangwa Edward petitioned the Supreme Court for a declaration that Article 10, Paragraphs 3(a), (b), and (c), Paragraph 5, Paragraph 7, and Paragraph 8 of Law No. 12/2017 of 04/07/2017, which establishes the Rwanda Investigation Bureau and determines its mission, powers, organization, and functioning, as well as Articles 38, 55, 56, 57, 60, 61, and 70 of Law No. 027/2019 of 19/09/2019 on criminal procedure, are inconsistent with Articles 13, 14, 23, 24, 29, 43, and 61 of the Constitution of the Republic of Rwanda (hereinafter referred to as the Constitution). He also requested that, if these provisions are not struck down, the Court, at its discretion, interpret them in a way that does not inconvenience anyone and ensures they do not interfere with the duties of the security agencies. [2] Murangwa Edward is also asking the Court to order the government and agencies involved in investigations to stop parading suspects before the press and forcing them to speak. Additionally, he requests that media managers, social media platforms—including YouTube—and any other parties be ordered to completely delete photos and videos of arrested suspects from their databases. [3] Particularly, Murangwa Edward claims that: a. The fact that Article 10, Section 3 (a, b, and c), and Sections 5, 7, and 8 of Law No. 12/2017 of 04/07/2017, establishing the

Rwanda Investigation Bureau and determines its mission, powers, organization, and functioning, outlines the reasons and circumstances under which the Authority may search a person or property, enter a building or place without a search warrant, or conduct a search without a warrant, constitutes a violation of the rights set out in the Constitution. b.The fact that Articles 38, 55, 56, 57, 60, 61, and 70 of Law No. 027/2019 of 19/09/2019 on Criminal Procedure are somehow related to Article 10, Paragraph 3 (a, b, and c), and Paragraphs 5, 7, and 8 of the aforementioned Law No. 12/2017 of 07/04/2017, is significant because they all pertain to searches of persons, places, residences, offices, or any other locations where an offence is suspected to have been or is being committed. They also provide that search warrants are issued by an executive administrative body, whereas Article 43 of the Constitution states that the

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judiciary, as the guardian of human rights and freedoms, should be responsible for issuing such warrants. c. The fact that Articles 38, 55, 56, 57, 60, 61, and 70 of Law No. 027/2019 of 19/09/2019 on Criminal Procedure provide for the interception of communications in criminal investigations and prosecutions, physical or internal body searches, seizure and placing a caveat on objects, search warrants, and permission to access places where evidence may be found, as well as the authority to issue a search warrant and monitor suspects with the use of technology, infringes on the human rights and freedoms provided by the Constitution. The petitioner explains this as follows: i. In the exercise of rights and freedoms, individuals are limited only by laws that aim to recognize and respect the rights and freedoms of others, as well as ensure good conduct, public order, and the general welfare characteristic of a democratic society, as stipulated in Article 41 of the Constitution. For this reason, the protection of these rights must be entrusted to the judiciary, as it is the body empowered by the Constitution to uphold them; ii. Human rights are inalienable, and the Constitution defines how they are to be protected and respected, with the Government responsible for safeguarding them. This means that, based on the provisions of Article 3 of the Constitution, which states that the

Constitution is the supreme law of the country and any law, decision, or act contrary to it is without effect, the provisions of any law that are inconsistent with the Constitution are null and void; iii. In the event that a search warrant is issued, or in the case of a search conducted without a warrant—whether it involves a physical or internal body search, or the search of a person, building, home, or workplace—the principle of the presumption of innocence must be upheld until the competent court convicts the suspect, as stipulated by the Constitution and various international covenants that Rwanda has signed; iv. If a warrant for search, communication interception, surveillance, physical or internal body search, or other activities referred to in the contested legal provisions is issued by a body not authorized by the Constitution, it would mean that both the activity and the laws supporting it are inconsistent with Articles 23 (Paragraphs 2 and 3), 43, and 61 of the Constitution, rendering them without effect. d.The provisions of Article 10, Paragraph 8, of Law No. 12/2017 of 07/04/2017, which state that any person can be ordered to provide information that would assist in an investigation and that the suspect may be paraded before the media and compelled to speak, violate the provisions of the following articles :

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i. Article 29 of the Constitution provides for the right to due process of law, particularly the principle that everyone has the right to be presumed innocent until proven guilty by a competent Court ; ii. Articles 73 and 107 of Law No. 027/2019 of 19/09/2019 on Criminal Procedure provide for confidentiality during investigations in criminal cases and outline who is responsible for providing evidence in those cases. e. Based on the right to due process, the right to privacy for the suspect, their family, and their place of work, as well as the responsibilities of institutions tasked with preventing and combating crime, this Court should provide an interpretation explaining how the terms "reasonable grounds," "substantial evidence," and "strong reasons" used in Article 10, Paragraph 3 (a, b, and c), and Paragraphs 5, 7, and 8 of Law No. 12/2017 of 07/04/2017 should align with their limitations, and this must be done in the interests of the law. [4] The hearing was held in public on 18/10/2022, with Murangwa Edward represented by Counsel Rugemintwaza Jean Marie Vianney and Counsel Bahati Védaste, while the Government of Rwanda was represented by Counsel Kabibi Spéciose and Counsel Kayitesi Pétronille. The Court first analysed the issue of whether Murangwa Edward has a legitimate interest in this case. [5] During the pre-trial conference on 16/12/2022, the Court determined that in

assessing whether the petitioner has a legitimate interest in the case, the following factors should be considered : a. Whether the law alleged to be unconstitutional affects the petitioner or a particular category to which he or she belongs, which justifies the petitioner's individual interest in filing the petition. An example would be laws that apply to journalists, doctors, teachers, and others ; b. Whether the law challenged as unconstitutional affects the general public in a way that may infringe upon their rights, and it grants every individual who may be impacted the right to challenge it as unconstitutional ; c. Whether the petitioner is a lawyer/advocate, and he or she is permitted, in the interests of justice, to file a petition to promote the law or protect the rights of those affected by the law, even if the lawyer has no personal interest in the petition. [6] The Court held that any one of the above grounds was sufficient to confirm that the petitioner had an interest. Therefore, although the provisions of the law alleged to be unconstitutional fell within the scope of provisions affecting everyone, the petitioner, as one of those affected, had the interest to file a petition without waiting to be personally impacted. The Court ruled that Murangwa Edward, as a party affected by the provisions of the Law establishing the Rwanda Investigation Bureau and determining its mission, powers, organisation, and functioning, as well as the Law relating to Criminal Procedure, has an interest in seeking a declaration that some of the provisions of those laws are unconstitutional. A hearing on the merits of the case was scheduled for 24/05/2023.

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[7] On that day, the hearing was held in public, with Murangwa Edward and the Government of Rwanda represented as before. The following issues were analysed: a. Whether Article 10, paragraph 3, a, b, and c, and paragraphs 5, 7, and 8 of Law No. 12/2017 of 04/07/2017 establishing the Rwanda Investigation Bureau and determining its mission, powers, organisation, and functioning, as well as Articles 38, 55, 56, 57, 60, 61, and 70 of Law No. 027/2019 of 19/09/2019 relating to criminal procedure, are inconsistent with Articles 13, 14, 23, 24, 29, 43, and 61 of the Constitution ; b. Whether the terms "reasonable grounds," "substantial evidence," and "serious grounds," as used in Article 10 of Law No. 12/2017 of 04/07/2017 establishing the Rwanda Investigation Bureau and determining its mission, powers, organization, and functioning, particularly in paragraphs 3, a, b, and c, should be interpreted in the interests of the law. [8] The court announced that the judgment would be pronounced on 21/07/2023; however, on that date, the pronouncement was not made and was instead postponed to 15/09/2023. It was then further postponed to 06/10/2023, due to reasons provided by the Court. [9] On this date, the Court informed the parties that the judgment was not pronounced as initially planned because, while the Court was in deliberation, the Constitution (of 04/08/2023), amending the Constitution

of 2003 revised in 2015, was published. The petitioner had claimed that the provisions of the law were inconsistent with the previous Constitution, and it became necessary for the Court to reopen the hearing in order for Murangwa Edward to reconcile his petition with the provisions of the amended Constitution. Additionally, one of the judges in the case was assigned new duties, resulting in a change to the hearing jury. [10] The case was reopened on 28/11/2023, with the petitioner represented as before and the Government of Rwanda also represented as previously. Murangwa Edward asked the Court, in the interest of justice, to halt and temporarily suspend the proceedings until the laws he was petitioning against, which were in the process of being revised, were published in the Official Gazette. He requested this to determine whether his claims had been addressed, in which case continuing the petition would be unnecessary. If his claims were not resolved, he sought to reconcile the petition with the revised Constitution as required by the Court. He explained that this request was based on a procedure not provided for in Rwandan law but used in the United States of America, called a motion in arrest of judgment. [11] The Court found that the petitioner did not provide any concrete explanations to support his request to suspend the trial, and he was unable to connect the practice

from other jurisdictions with what he was requesting. Regarding the reconciliation between the petition and the revised Constitution, Murangwa Edward stated that the provisions of the 2003 Constitution of the Republic of Rwanda, revised in 2015, on which he based his petition, had not been changed in the new Constitution. He requested that wherever he had used the phrase "the Constitution of the Republic of Rwanda of 2003 revised in 2015," it be replaced by "the Constitution of the Republic of Rwanda." The Court decided that the judgment would be pronounced on 22/12/2023. II.

ANALYSIS OF LEGAL ISSUES IN THIS CASE

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II.1. Whether Article 10, paragraph 3, a, b, and c, and paragraphs 5, 7, and 8 of Law No. 12/2017 of 04/07/2017 establishing the Rwanda Investigation Bureau and determining its mission, powers, organisation, and functioning, as well as Articles 38, 55, 56, 57, 60, 61, and 70 of Law No. 027/2019 of 19/09/2019 relating to criminal procedure, are inconsistent with Articles 13, 14, 23, 24, 29, 43, and 61 of the Constitution [12] Murangwa Edward and his counsels argue that the Judiciary is the guardian of human rights and freedoms. However, they contend that Article 10, Paragraph 3, a, b, and c, along with Paragraphs 5, 7, and 8 of Law No. 12/2017 of 04/07/2017, and Articles 38, 55, 56, 57, 60, 61, and 70 of Law No. 027/2019 of 19/09/2019 relating to criminal procedure, allow searches of a person, place, residence, office, or any other location suspected of being involved in a crime or where a crime is being committed, to be conducted by justice institutions that fall under the executive administrative body. [13] They claim that the aforementioned provisions of the law violate Articles 13, 14, 23, 24, 29, 43, and 61 of the Constitution. They argue that these provisions infringe upon human rights, as search warrants are not approved by the Judiciary prior to being issued, despite the Judiciary being empowered by Article 431 of the Constitution to protect and respect the inalienable

rights of individuals. They further assert that Article 3 of the Constitution establishes the hierarchy of norms, making the Constitution the supreme law of the country. Consequently, the contested provisions of the law should be rendered without effect due to their inconsistency with the Constitution. [14] They state that when issuing a search warrant, when a search is conducted without a warrant, or in the case of a physical and internal body search of a person, residence, or place of work, the rights of the suspect— including the presumption of innocence until proven guilty by a competent court—must be protected, respected, and upheld, as stipulated by the Constitution and various international covenants that Rwanda has signed2. [15] They contend that the Prosecutor leads the Investigator, who, in turn, leads the Police, all of whom are overseen by the Minister of Justice or another minister. They argue that the decision to conduct a search—whether with or without a search warrant, especially in emergencies—is made by the Prosecutor, who also interrogates the suspect, makes the final decision regarding the case, and prosecutes the individual before the court. They claim that these actions violate the principle of equality of arms between parties, as provided in Article 126 of the Criminal Procedure Law, along with the following principles outlined in the Constitution: a. The principle of three co-equal arms of government, principal of checks and balance between the three co-equal branches of government ;

1 This article provides that the Judiciary is the guardian of human rights and freedoms. 2 Those covenants are the following: “The International Covenant on Civil and Political Rights. Rwanda acceded to the Convention on 1 March 1975 with neither reservations nor derogations; The International Covenant on Economic, Social and Cultural Rights. Rwanda acceded to the Convention on 1 March 1975. It initially had a reservation, which read, The Rwandese Republic [is] bound, however, in respect of education, only by the provisions of its Constitution, but this was withdrawn in October 2008; The African Charter on Human and Peoples’Rights. Rwanda signed the Charter on 11 November 1981 and ratified it on 1 July 1983.

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b. The principle of due process of law; c. The principle of respect for the privacy of a person, his or her family, workplace or correspondence as well as the right to freedom. [16] They argue that in Rwanda, the justice system is structured so that each level of prosecution is accompanied by a corresponding court, which means that the duty to issue search warrants should fall to the court upon the request of the prosecutor, investigator, or police. This should occur after the judge has been presented with valid reasons, ensuring that those who fail to comply with the limits set by the court can be held accountable. According to them, under the current practice, if the issuer of the search warrant violates the suspect's rights, there is no supervisory body to reprimand or hold them accountable, as they cannot punish themselves. They contend that this situation is inconsistent with Article 61 of the Constitution, which stipulates that the three branches of government are separate and independent from each other, while still being complementary. [17] They cite an example from the past, where the district mayor combined the responsibilities of heading the district with those of chairing the district council. This led to a lack of checks and balances when this leader made mistakes. They explain that even in the private sector, the chairman of the board of directors is not the same

person as the CEO of the business. [18] They state that although the duties of protecting security, national sovereignty, and preventing and prosecuting crime are important, the relevant institutions must implement these duties in compliance with the provisions of the Constitution. They explain that in relation to this case, reading Articles 24, 41, and 43 of the Constitution together indicates that the Judiciary has the responsibility and authority to examine and confirm that there are strong and relevant reasons for compelling crime prevention and combating agents to violate human rights in the interest of public order and the common good. [19] They further assert that the rights outlined in Articles 413 and 434 of the Constitution can only be suspended in special circumstances, which must be authorized in accordance with the principles of a democratic country; hence, such actions should be executed by the Judiciary. In their view, activities such as searches, interception of telecommunications, surveillance, physical and internal body searches, and examinations of residences, workplaces, businesses, and other actions referenced in the contested laws, particularly when conducted by bodies not specified in the Constitution, temporarily suspend the rights of the individuals being prosecuted under Article 235 of the Constitution. This, they argue, jeopardizes their personal and family privacy; therefore, the provisions deemed unconstitutional must be repealed.

3 This article reads that “In exercising rights and freedoms, everyone is subject only to limitations provided for by the law aimed at ensuring recognition and respect of other people’s rights and freedoms, as well as public morals, public order and social welfare which generally characterize a democratic society”. 4 The article stipulates that “The Judiciary is the guardian of human rights and freedoms. This duty is exercised in accordance with this Constitution and other laws”. 5 This article provides for the following: “The privacy of a person, his or her family, home or correspondence shall not be subjected to interference in a manner inconsistent with the law; the person’s honor and dignity shall be respected. A person’s home is inviolable. No search or entry into a home shall be carried out without the consent of the owner, except in circumstances and in accordance with procedures

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[20] They cite Judge Mbuyiseli Madlanga of the Constitutional Court in South Africa, in the case of "Ngqukumba v Minister of Safety and Security and Others ([2014] ZACC 14)," who explained that although measures to protect security and combat crime are necessary, they do not permit interference with an individual's right to privacy or that of their family. [21] They reference several cases—Johnson v. United States6, Katz v. United States7, Mapp v. Ohio State8, Minister of Police and Others v. Kunjana9, and Société Colas Est and Others v. France10—where courts, after emphasizing the significance of constitutional protections and international covenants, affirmed that the examination, approval, and issuance of search warrants must be conducted by the judiciary. They argue that, based on Article 43 of the Rwandan Constitution, Rwandan courts, being impartial, are the appropriate authorities to issue search warrants. [22] They explain that if search activities are carried out without safeguarding a person’s rights as sacred and inviolable, it can cause significant harm to the individual and their family. In Rwanda, for example, it is common for people to assume guilt when a search occurs, leading to the individual being ostracized by relatives, neighbors, and the community, resulting in social isolation and emotional distress for both the individual and their family. They argue

that the issuance of a search warrant should not be treated as a mere formality, but rather as a crucial element of justice. If the process is reduced to a mere formality—where judges simply sign the warrant and prosecutors later fill it with their own content, as happens in some countries, including Rwanda—it undermines the essence of justice. True justice, they argue, must be viewed from the perspectives of both the plaintiff and the defendant. [23] They argue that when the search is conducted by the investigator or prosecutor, there is a risk that evidence favorable to the suspect could be destroyed, which limits the fairness of the

determined by the law. Confidentiality of correspondence and communication shall not be waived except in circumstances and in accordance with procedures determined by the law”. 6 In the case of Johnson v. United States (N° 329), 333U.S.10 (1948), the Judge explained the authority that should issue a search warrant. 7 In the case of Katz v. United States, 389 U.S. 347 (1967), the United States Supreme Court identified an instance where illegal telecommunications interception had occurred. 8 In the case of Mapp v. Ohio, 367 U.S. 643 (1961), argued on March 29, 1961, and decided on June 19, 1961, the Supreme Court of the United States (opinion delivered by Justice Thomas Campbell Clark) emphasized the importance of the right to privacy for individuals and their families. The Court also underscored the crucial role of a search warrant issued by a competent authority in ensuring fair justice. 9 In the case of Minister of Police and Others v. Kunjana (CCT 253/15) [2016] (9) BCLR 1237 (CC); 2016 (2) SACR 473 (CC) (27 July 2016), the Constitutional Court of South Africa identified the appropriate constitutional authority responsible for issuing search warrants. The Court affirmed that the right to privacy, as well as the sanctity of a person's home and family, including all correspondence, is fundamental and stems from the inherent value accorded to human beings. In this case, it was

explained what discretion is necessary when issuing a search warrant and what considerations the issuing court should take into account, based on the importance of protecting an individual's and their family's right to privacy. 10 In the case of Société Colas Est and Others v. France (Application No. 37971/97), judgment of Strasbourg, 16 April 2002, the European Court of Human Rights, Second Section, in paragraph 46, identified the appropriate authority responsible for issuing search warrants. The Court stated that failure to comply with this requirement would be considered a violation of the provisions of the European Union Treaty protecting the privacy of the individual and their family.

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process. Therefore, they contend that the search warrant must be issued by a court, after the specific items or locations to be searched have been clearly identified. This direction is grounded in the principle that the role of the Public Prosecutor's Office and the Criminal Investigation Department is to conduct investigations, not to make decisions regarding searches. Such decisions, they assert, should fall under the exclusive jurisdiction of the judiciary, as it is their responsibility to ensure impartiality and protect the rights of all parties involved. [24] They clarify that their request is not aimed at abolishing the practice of conducting searches or stripping the Public Prosecution of its responsibilities as provided for in Article 142 of the Constitution. Rather, they seek to establish clear boundaries for search warrants, ensuring both a starting point and an end point. They argue that the current method of conducting searches violates the provisions of the Constitution. Therefore, they urge the Court to safeguard against potential errors by the Investigation Bureau and the Public Prosecution, and to mandate that the law governing searches aligns with constitutional principles. Furthermore, they request that courts, as neutral bodies, either conduct searches or issue search warrants. [25] Murangwa Edward and his counsel assert that Article 10, paragraph one,

subparagraph 8, of Law No. 12/2017 of 07/04/2017 is the basis on which the Investigation Bureau parades suspects before the media and requests that they speak to the press. They contend that this practice contradicts Article 29, paragraph 2, of the Constitution, which stipulates that a person prosecuted for a crime is presumed innocent until proven guilty by a competent court. That article 10, paragraph one, subparagraph 8, reads: In accordance with relevant laws, RIB has the following powers: [...] 8° to order for information and take statements from any person suspected of having information that can help an investigation...]. [26] They argue that, to implement Article 29 of the Constitution, Article 73 of Law No. 027/2019 of 19/09/2019, relating to criminal procedure, stipulates that investigations must be conducted in a confidential manner. Additionally, Article 107, paragraph 2, of that law states that an accused person is always presumed innocent until proven guilty by a final court decision and is not obligated to prove their innocence. They further assert that forcing a criminal suspect to speak to the media violates the principle of non-self-incrimination, as the Investigation Bureau and the Prosecution are the bodies responsible for investigating crimes, collecting evidence, and prosecuting offenders. [27] They explain that the right to due process does not begin only

before the Court, but rather starts when a person is being investigated by judicial authorities or is arrested. This ensures that a person can be considered innocent until proven guilty, and it is improper to force them to provide information about the alleged crime to the media. They state that the Investigation Bureau often invokes Article 10, paragraph one, section 8, of Law No. 12/2017 of 07/04/2017, allowing them to parade suspects in front of the media, including on reality television platforms like YouTube, while questioning them about the crimes they are suspected of, often while wearing handcuffs or being restrained. They argue that this trend enables the media to act like a court, which can shape public perception and potentially influence the Court's judgment. [28] They further state that Article 10, paragraph one, subparagraph 8, of Law No. 12/2017 of 07/04/2017 contains provisions that exceed what is necessary. They argue that the phrase "to order for information and take statements from any person suspected of having information that can help

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an investigation" violates the principle of the right to due process. Moreover, the inclusion of the words "any person, including the suspect and the Court," implies that individuals may be compelled to incriminate themselves or that the Court could be required to provide information about a person whose case file is under review. [29] They argue that in the case of Coetzee and Others v. The State of South Africa, the Constitutional Court of South Africa emphasized that the right to be presumed innocent and the right not to be compelled to incriminate oneself or provide information are inalienable11. They request this Court to recognize that Article 10, paragraph one, subparagraph 8, of Law No. 12/2017 establishing the Rwanda Investigation Bureau and determining its mission, powers, organization, and functioning is inconsistent with Article 29, paragraph one, subparagraph 2° of the Constitution. They ask the Court to declare it repealed and to order all government agencies involved in investigations to refrain from parading suspects before the media to ensure that the right to due process is respected. [30] They further state that, if the Court finds that Article 10, Paragraph One, Subparagraph 8, of Law No. 12/2017 of 07/04/2017 establishing the Rwanda Investigation Bureau and determining its mission, powers, organization, and functioning should not be repealed because it is

not inconsistent with the principle of due process of law enshrined in Article 29 of the Constitution, the Court should ensure that the word "order" is removed. They also request that the words "any person except those charged with a crime" be added to protect the right to due process of law. [31] They conclude by asking the Court to rely on the provisions of Article 3 of the Constitution, which states that any law, decision, or act contrary to this Constitution is without effect. They request the Court to declare that Article 10, Paragraphs 3(a), (b), and (c), and Paragraphs 5, 7, and 8 of Law No. 12/2017 of 07/04/2017 establishing the Rwanda Investigation Bureau and determining its mission, powers, organization, and functioning, along with Articles 38, 55, 56, 57, 60, 61, and 70 of Law No. 027/2019 of 19/09/2019 relating to criminal procedure, are inconsistent with Articles 13, 14, 23, 24, 29, 43, and 61 of the Constitution. They ask that these provisions be declared null and void and repealed, either in whole or in part. [32] Counsel Kabibi Spéçiose and Counsel Kayitesi Petronille, representing the Government of Rwanda, submit that Murangwa Edward and his counsels have failed to prove that the provisions they are challenging are inconsistent with the Constitution. They argue that Murangwa and his team focus mainly on the organization of the Prosecutor's Office by placing it

within the executive administration but overlook the fact that it is also considered part of the judiciary. They assert that the Rwandan law granting the Prosecutor's Office the exclusive right to make interlocutory decisions fosters trust and harmony between the Prosecutor's Office and the judiciary in matters of criminal prosecution. [33] They claim that the difference between prosecutions in Rwanda and other countries is that in Rwanda, the courts review search documents after the search has been carried out (a posteriori review), whereas in countries such as the United States, England, France, Belgium, and

11 S v Coetzee and Others (CCT50/95) [1997] ZACC 2; 1997 (4) BCLR 437; 1997 (3) SA 527 (6 March 1997).

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Cameroon12, the search warrant or telecommunications interception authorization is signed by a judge before it is used (a priori review). However, they argue that in these countries, the court cannot prevent the prosecution from using these documents, and there are instances where the judge signs the document, after which the prosecution fills in other information as they wish, reducing the role of the court to a mere formality. They believe that the a priori control method used in the aforementioned countries should not be preferred over the system in Rwanda, which facilitates institutional functioning and cooperation. [34] They argue that the arrest warrants issued in Rwanda are not comparable to those issued in other countries because, in Rwanda, they are provisional. After their issuance, the suspect must be brought before the court as soon as possible for the body responsible for protecting human rights and freedoms to make a decision, which is the same procedure for seized goods. They explain that the organization and powers of the judicial system do not allow the judge to leave the court and investigate crimes, as this responsibility belongs to the Investigation Bureau and the National Public Prosecution. Therefore, while Rwanda's method may not be common in other countries, it is considered the best because it works effectively, the institutions complement each other,

and there is no inconsistency with the Constitution. [35] Regarding the fact that this body is part of the executive administration and does not carry out activities considered judicial acts, they argue that Rwanda and Rwandans, in accordance with Article 61 of the Constitution, have chosen how the branches of government operate together, complementing each other while maintaining their own independence. They explain that even though in the aforementioned countries, the judge signs the documents initiating prosecution, this does not change the fact that in all these countries, the Prosecutor General ultimately decides whether to prosecute the offender13. They contend that if, in Rwanda, the responsibility for issuing arrest warrants were transferred to the courts, the courts would then be tasked with conducting investigations before the case is referred to them, which could compromise their independence and impartiality. [36] They argue that the cases of Johnson v. United States and Katz v. United States, which Murangwa Edward relied on, are limited to determining where and when a search should occur. These cases do not address who is to be searched or whether the location to be searched actually contains substantial evidence. This is because the courts found that investigative institutions are credible and that there is a judicial mechanism to review any potential errors that

may have occurred during the search at a later stage. They further explain that the National Public Prosecution has no personal interest in the investigation, as its primary objective is to uncover how the crime was committed, which serves the public interest. Therefore, they assert that every investigative officer should be regarded as a person of integrity while carrying out their duties. [37] They argue that there is no valid reason to transfer the responsibility of investigation to the judiciary, as the courts should maintain the authority to ensure that all procedures were carried out in accordance with the law, thereby allowing even the suspect, who claims to have been wronged, the opportunity to present evidence. They point out that in some countries where search warrants

12 www. lawreview-5693-miller (2).pdf (Prosecution dominance of the warrant decision: A study of the current practice), visited on 7/7/2022. 13www.lawreview-5693-miller (1).pdf.

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are issued by the courts, there exist roles such as the "Juge d'Instruction" (investigating judge) and the "Juge de Détention" (custody judge), which are distinct from regular judges. In their view, assigning investigative duties to judges would lead to both the prosecution and the courts performing the same tasks, resulting in an increased caseload and backlogs in the courts, as well as unnecessary waste of state resources. [38] They submit that if Article 23, paragraph three, and Article 43 of the Constitution are read together, they both indicate that there is allowance for other laws to determine how various documents, such as those used in searches or communications interceptions for suspects, are issued. In particular, article 23, paragraph 2, of the Constitution stipulates that no search or entry into a home shall be carried out without, the consent of the owner, except in circumstances and in accordance with procedures determined by the law, and this procedure is detailed in Article 38 of Law No. 027/2019 of 19/09/2019 relating to criminal procedure as follows: During investigations and prosecutions and for purposes of ascertaining the truth on commission of offences against national security, offences of corruption and offences of embezzlement of State property, authorities of State security organs specified by the Constitution of the Republic of Rwanda, Office of the

Ombudsman and Rwanda Investigation Bureau may, under written authorization issued by the Prosecutor General listen, understand and audio or video record documents, internet, discussions, telegram, postal cards, high tech communication and any other mode of communication on offences referred to in this Article during communication. [39] They further submit that Articles 5514, 5615, and 5716 of Law No. 027/2019 of 19/09/2019 on criminal procedure have conferred power on the competent authorities and established the procedures and conditions under which they will exercise it without violating human rights and freedoms. They argue that Articles 23 and 43 of the Constitution have entrusted the legislator with the responsibility to enact Law No. 12/2017 of 07/04/2017, establishing the Rwanda Investigation Bureau and determining its mission, powers, organisation, and functioning, as well as Law No. 027/2019 of 19/09/2019 relating to criminal procedure. These two laws, they explain, determine other procedures that are not explicitly provided for in the Constitution, as the Constitution does not list all necessary specifics. [40] They further submit that Article 142 of the Constitution provides that the National Public Prosecution Authority is responsible for investigating and prosecuting crimes throughout the country, seeking both incriminating and exculpatory evidence. They argue that searches are one of the investigative activities carried out to gather evidence, and it is clear that the Constitution has conferred this responsibility on the National Public Prosecution Authority.

14 That article reads that if the suspect is caught red-handed or is presumed to have been caught red-handed, the requirement for the investigator to obtain a search warrant or observe search hours may not be complied with. 15 That article stipulates that during evidence collection, an investigator or a prosecutor may conduct a body search or body cavity search of a suspect with the help of a qualified person or through appropriate technology. This article also sets out the limits for such a search. 16 This article provides that an investigator or a prosecutor may seize objects or put caveat on immovable asset wherever they are and in any way if the confiscation is carried out in accordance with the Law and such other items that may serve as incriminating or exculpatory evidence against the suspect.

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[41] With regard to searches conducted without a warrant, they argue that the Investigation Bureau or the Prosecution may conduct such searches in accordance with the procedures laid down by law, particularly Article 10, paragraph 3, subparagraphs a, b, and c of Law No. 12/2017 of 07/04/2017, establishing the Rwanda Investigation Bureau and determining its mission, powers, organisation, and functioning, as well as Article 55 of Law No. 027/2019 of 19/09/2019 relating to criminal procedure. They note that this is not a practice unique to Rwanda but is also applied in other countries, citing Article 2217 of the Criminal Procedure Act of South Africa as an example. [42] The representatives of the Government of Rwanda argue that conducting searches without a warrant does not violate the Constitution, including Article 61 or any other articles cited by the petitioner in his submission. They conclude that it is not appropriate to repeal the contested articles because the Constitution itself, in Articles 23 and 43, provides for these laws to regulate in detail matters not explicitly addressed in the Constitution, in accordance with the hierarchy of norms. They also argue that the provisions of the Constitution, particularly Article 61, do not replace the role of the judge in issuing search warrants. Instead, they suggest that the judiciary's role is minimized based on the unique

functioning of the branches of government in Rwanda, which maintains the independence and complementarity of these branches. They note that, in some developed countries, search warrants are not required, while in others, the decision to issue a search warrant is made by a judge depending on the nature of the governing laws. [43] With regard to the provisions of Article 10, paragraph one, subparagraph 8, of Law No. 12/2017 of 07/04/2017 establishing the Rwanda Investigation Bureau and determining its mission, powers, organisation, and functioning, the representatives of the Government of Rwanda argue that Murangwa Edward and his counsels misinterpret this article. They assert that it does not imply that the accused is compelled to provide information. Rather, it refers to any person, meaning someone other than the accused, who is believed by the Investigation Bureau to possess information that could assist in the investigation, effectively identifying this person as a witness. [44] They state that they agree with Murangwa Edward that everyone accused of a crime is presumed innocent until convicted by a competent court. However, they argue that a distinction should be made between those brought before the court and those still under investigation, where evidence is still being gathered. Therefore, they contend that Article 29 of the Constitution, which pertains to due process of

law, establishes standards that are only to be observed during the trial phase and should not be applied during the investigation. [45] They further state that Article 17 of Law No. 027/2019 of 19/09/2019 relating to criminal procedure establishes the investigative organs, and this article is what the investigator relies on when initiating a preliminary investigation. It grants the investigator the authority to question anyone they believe may have information about the commission of a crime. They clarify that the

17 “A police official may without a search warrant search any person or container or premises for the purpose of seizing any article referred to in section 20: if the person concerned consents to the search for and the seizure of the article in question, or if the person who may consent to the search of the container or premises consents to such search and the seizure of the article in question; or if he on reasonable grounds believes: i. that a search warrant will be issued to him under paragraph (a) of section 21(1) if he applies for such warrant; and ii. that the delay in obtaining such warrant would defeat the object of the search.”

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phrase "any person" does not refer to the accused, as in the preliminary investigation, the suspect has not yet been identified. There are instances where someone may initially be questioned as a witness but later be found to be the person who should be prosecuted. [46] They argue that providing information and self-incrimination are two distinct concepts. Self-incrimination only occurs when a person is informed of the charges against them and is required to provide an explanation regarding those charges. In contrast, providing information about a crime is not limited to the accused, and when the accused does offer information, it is done voluntarily. They explain that the law sets out the procedure for how information related to the commission of a crime should be given. Before someone defends themselves against a crime, they must first be informed of the charges, that they are being questioned, and of their rights, which include the right to remain silent, protection from self-incrimination, and the right to legal representation during interrogation. [47] They further argue that providing information does not imply doing so in the presence of the media or while in detention. The key point is that when someone is asked to provide information, they are obligated to do so, and this differs from self-incrimination, as the information is provided to assist in the investigation.

They clarify that the purpose of the information given during an investigation is not for media dissemination but to uncover the details of the crime and identify those involved. [48] They explain that the contested article in no way requires the suspect to defend themselves before the media, and Murangwa Edward does not reference any other legal provision supporting such a practice. They further state that although the Investigation Bureau takes care to ensure that suspect interrogations are conducted in a quiet and secure environment, this does not prevent the media from arriving first at the crime scene. As a result, the media may record audio and video of the interrogation without the investigator's knowledge. However, they argue that this should not be considered a valid reason to repeal Article 10, paragraph one, subparagraph 8, of Law No. 12/2017, which is alleged to be inconsistent with Article 29 of the Constitution. They conclude that this is a practical issue that can be resolved without resorting to a petition for the unconstitutionality of the legal provision. [49] They conclude that Murangwa Edward's request for this Court to order government agencies involved in the investigation not to parade and question a person under investigation before the media while wearing handcuffs or being restrained should not be considered or decided upon, as it is not related to the petition.

DETERMINATION OF THE COURT [50] The legal provisions that Murangwa Edward petitions the Court to declare unconstitutional address various issues. However, his submission primarily focuses on matters related to searches, to order for information and taking statements from any person suspected of having information that can help an investigation. These are the issues the Court will consider when reviewing the petition.

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a. Search issues i. With regard to search conducted following the issuance of a search warrant [51] Article 10, paragraph one, first part of subparagraph 3, of Law No. 12/2017 of 07/04/2017 establishing Rwanda Investigation Bureau and determining its mission, powers, organisation and functioning stipulates that: In accordance with relevant laws, RIB has the following powers: […] to search a person, enter a building or premises linked to information being sought with a warrant […]. [52] Article 55, paragraphs 1 and 2, of Law No. 027/2019 of 19/09/2019 relating to criminal procedure reads that “If an investigator finds that evidence required is made up of papers, documents and any other items held by the suspect or any other person, he or she may, with a search warrant from the public prosecution, search the place where such items are kept. The prosecutor in charge of case file preparation may also conduct a search at the scene of the offence or at any other place where any evidence necessary for the determination of the truth may be found. The prosecutor may assign such functions to the investigator”. [53] Article 61 of the aforementioned Law No. 027/2019 of 19/09/2019 reads that A search warrant is an authorization issued by the Public Prosecution upon authorization by: 1° the Prosecutor General; 2° the Military Prosecutor General in case of members of the military or their

co-offender; 3° a National Prosecutor; 4° a Chief Prosecutor at the Intermediate level; 5° a Prosecutor at the Primary level. The warrant provided for under Paragraph One of this Article empowers the person in charge of its enforcement to enter any premises mentioned in the document to uncover evidence or items that may establish the truth in relation to the offence and the suspect. [54] It is in the finding of the court that the law does not define what search is. Legal scholars on criminal procedure define a search as a coercive measure by which a competent authority enters a building or premises in accordance with the conditions and procedures laid down by law for the purpose of establishing a criminal offence, gathering evidence relating to a criminal offence, seizing objects or apprehending suspected perpetrators or accomplices18. They explain that a search is conducted when there are reasonable grounds to suspect that certain items in the possession of a specific person or located in a particular place may help uncover the truth in a criminal case19.

18 “La perquisition est le moyen de coercition par lequel l’autorité compétente pénètre dans une demeure ou une dépendance de celle-ci, dans les conditions et les formes prévues par la loi, afin d’y constater une infraction, de rassembler les preuves relatives à une infraction, de procéder à des saisies ou d’arrêter les auteurs ou complices présumés de celle-ci”; Michel Franchimont et les Autres, Manuel de procédure pénale, Bruxelles, Larcier,2012, p. 515. 19 Etienne du Toit and Others, Commentary on the Criminal Procedure Act, Juta, Cape Town, 1996, p. 2-3.

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[55] Reasonable grounds, or probable cause, exist when the competent authorities, in the exercise of their diligence and discretion, find reliable information leading them to suspect that evidence related to the commission of an offence can be uncovered through a search20. In other words, a search is conducted to obtain or supplement evidence in a criminal case. It is an investigative act, as confirmed by legal scholar Michel Franchimont21. [56] The legal provisions mentioned above indicate that the search operation, as previously described, is conducted by an investigator or the Prosecutor based on a search warrant issued by the Public Prosecution Authority. Murangwa Edward acknowledges that the investigation should be carried out by the Investigation Bureau or the Public Prosecution; however, the basis of his petition is his disagreement with the fact that the search warrant is issued by the Public Prosecution rather than by the Court. He argues that the issuance of the search warrant by the Prosecutor, rather than the Court, renders the contested legal provisions inconsistent with Articles 13, 14, 23, 24, 29, 43, and 61 of the Constitution. [57] The Court finds that although Murangwa Edward groups these articles of the Constitution together, they fall into different categories: a. The category of rights and freedoms; b. The category relating to the promotion and protection

of rights and freedoms; c. The category of branches of government. [58] Articles 13, 14, 23, 24, and 29 fall into the category of human rights and freedoms. In particular, Articles 13 and 14 establish the right to the physical and mental inviolability of a human being. Article 13 of the Constitution stipulates that: A human being is sacred and inviolable. The State has an obligation to respect, protect and defend the human being. And article 14 reads that: Everyone has the right to physical and mental integrity. No one shall be subjected to torture or physical abuse, or cruel, inhuman or degrading treatment. No one shall be subjected to experimentation without his or her informed consent. Modalities of the consent and experiments are determined by law. [59] Articles 23 and 24, paragraph one, of the Constitution deal with the right to privacy, liberty, and security of the person. Article 23 reads that: The privacy of a person, his or her family, home or correspondence shall not be subjected to interference in a manner inconsistent with the law; the person’s honour and dignity shall be respected. A person’s home is inviolable. No search or entry into a home shall be carried out without the consent of the owner, except in circumstances and in accordance with procedures determined by the law. Confidentiality of correspondence and communication shall not be waived except in circumstances and in accordance with procedures determined by the law. And article 24, paragraph one, stipulates that: A person's liberty and security are guaranteed by the State…

20 Probable cause exists when prudent and caustious police officers have trustworth information leading them to believe that evidence of crime might be obtained through a particular search; John M. Scheb and John M. Scheb, Criminal Law and Procedure, Toronto, Thomson and Wadsorth, 2005, p.380. 21 La perquisition est un acte d’instruction […]; Michel Franchimont, Manuel de procédure pénale, Bruxelles, Larcier, 2012, p.516.

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[60] Article 24, paragraphs 2 and 3, and Article 29 of the Constitution establish the principle of due process of law. Article 24, paragraphs 2 and 3, provides that: No one shall be subjected to prosecution, arrest, detention or punishment unless provided for by laws in force at the time the offence was committed. No one shall be subjected to security measures except as provided for by law and for reasons of public order or State security. [61] Article 29 of the Constitution stipulates that everyone has the right to due process of law, which includes the right: 1° to be informed of the nature and cause of charges and the right to defence and legal representation; 2° to be presumed innocent until proved guilty by a competent Court; 3° to appear before a competent Court; 4° not to be subjected to prosecution, arrest, detention or punishment on account of any act or omission which did not constitute an offence under national or international law at the time it was committed. Offences and their penalties are determined by law; 5° not to be held liable for an offence he or she did not commit. Criminal liability is personal; […]. [62] Article 43 of the Constitution falls under the category of promotion and protection of human rights and freedoms and reads as follows: The Judiciary is the guardian of human rights and freedoms. This duty is exercised in accordance with this

Constitution and other laws. And article 61, paragraph 1 and 2, of the Constitution falls under the category relating to the branches of the government, and reads that: Branches of Government are the following: 1° The Legislature ; 2° The Executive ; 3° The Judiciary. The three branches are separate and independent from each other but are all complementary [...]. [63] The Court finds that the main issue here is to determine whether the fact that the search warrant is not issued by the Court but instead by the Public Prosecution is in violation of some or all of the above-mentioned articles of the Constitution, as claimed by Murangwa Edward. [64] When a crime is committed, the relevant authorities must act swiftly to find and collect evidence that will help identify the perpetrator. To gather evidence, it is necessary to search all places where it is likely to be found, including people's homes, workplaces, and other locations. This operation must be carried out promptly to prevent the evidence from being concealed or destroyed. [65] Article 23 of the Constitution prohibits unlawful interference with a person's privacy, family, home, or correspondence. However, this article acknowledges that a search may be necessary under certain circumstances and in accordance with procedures established by law. Article 24 of the Constitution further provides that surveillance (security measures) may be carried

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out under circumstances and procedures established by law, and for reasons of public stability or national security. This indicates that the principle of inviolability of a person, as provided by these articles, is not absolute but subject to limitations, though only under the circumstances and manner determined by law. These articles do not assign any specific institution the power to conduct a search or determine how it should be conducted, instead leaving this to be defined by law. [66] To implement the provisions of the aforementioned Articles 23 and 24, Law No. 12/2017 of 07/04/2017, establishing the Rwanda Investigation Bureau and determining its mission, powers, organization, and functioning, along with Law No. 027/2019 of 19/09/2019, relating to criminal procedure, were enacted. In these two laws, the Legislator detailed how a search should be conducted, granting the authority to carry out searches to the investigative bodies, namely, the Investigation Bureau and the Public Prosecution, based on the provisions of Article 9(2) of Law No. 12/2017 of 07/04/201722, and Article 17, paragraphs 1 and 2, of Law No. 027/2019 of 19/09/201923. [67] The Public Prosecution, as the body responsible for investigations, is authorized by law to issue search warrants. In countries where the warrant is issued by a judge, there is a special judge responsible for overseeing and following up

on investigations, known as the "juge d'instruction" or investigating judge. This judge handles the case files submitted by the public prosecutor and does not participate in hearings, ensuring there is no overlap between the tasks of investigating offences and adjudicating cases. Examples of such countries include the Kingdom of Belgium, France, Cameroon, and others. [68] In the Kingdom of Belgium, the "juge d'instruction" (investigating judge) can, upon request or on their own initiative, search the suspect's premises or any other location in order to seize documents or other items that may reveal the truth24. This means that the juge d'instruction plays a central role in the investigation. The same applies in France, where the juge d'instruction carries out or supervises all investigative measures, including searches25.

22 RIB has the following mission: 1o […]; 2o To conduct an investigation intended to identify, stop and dismantle existing or emerging criminal acts […] 23 Investigation is carried out by the public prosecution with assistance of the organ in charge of investigation. However, preliminary investigations are carried out by the organ in charge of investigations, on own motion, on complaint or under instructions of public prosecution. 24 Article 87 du Code d’Instruction Criminelle mise à jour au 07/08/2018: “Le juge d'instruction se transportera, s'il en est requis, et pourra même se transporter d'office dans le domicile [de l'inculpé], pour y faire la perquisition des papiers, effets, et généralement de tous les objets qui seront jugés utiles à la manifestation de la vérité. <L 10-07- 1967, art. 1, 52°>. Art. 88 du même code: Le juge d'instruction pourra pareillement se transporter dans les autres lieux où il présumerait qu'on aurait caché les objets dont il est parlé dans l'article précédent.” 25 Article 81, al.1, du Code de procédure pénale, édition 2016: “Le juge d'instruction procède, conformément à la loi, à tous les actes d'information qu'il juge utiles à la manifestation de la vérité. Il instruit à charge et à décharge.”

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[69] In Cameroon, a search warrant may be issued by either the public prosecutor or the investigating judge26, who may also conduct the search personally27. In the Kingdom of Belgium, the public prosecutor can conduct a search without the authorisation of the investigating judge if the suspect has been caught in the act28. [70] In other countries, the search warrant is issued by the Court, such as in South Africa, the United States of America, Great Britain29, Canada, and elsewhere. In South Africa, Article 21, paragraph 1, of the Criminal Procedure Act, 1977, provides that a search warrant may be issued by the Court when, after the applicant has taken an oath, the Court is satisfied that there are reasonable grounds to suspect that something is owned or controlled by a certain person or is located in a building within the court's territorial jurisdiction. This article also stipulates that the warrant can be issued by the judge during the hearing if it becomes evident that it is necessary30.

26 Article 12 du Code de Procédure Pénale du 27 Juillet 2005: “(1) Le Procureur de la République peut décerner: a) des mandats de comparution, d'amener, de perquisition et d'extraction; b) […] (2) Le Juge d'Instruction peut décerner mandat de comparution, d'amener, de perquisition, d'arrêt, de détention provisoire et d'extraction”. L’article 16 du même Code: “Le mandat de perquisition est l'ordre donné à l'officier de police judiciaire par le Procureur de la République, le Juge d'Instruction ou la juridiction de jugement, de pénétrer dans tout lieu public ou privé, de le fouiller aux fins de rechercher et de saisir tous objets ou documents qui ont servi à la commission d'une infraction ou qui apparaissent comme le produit d'une infraction”. 27 Article 177 du Code de Procédure Pénale du 27 Juillet 2005:(1) “Le Juge d'Instruction peut se transporter sur toute l'étendue du ressort territorial de sa juridiction pour effectuer tous les actes d'information utiles à la manifestation de la vérité, et notamment procéder à des perquisitions et à des saisies”. 28 Article 32 du Code d’Instruction Criminelle mise à jour au 07/08/2018: “Dans tous les cas de flagrant délit, lorsque le fait sera de nature à entraîner une peine [criminelle], le [procureur du Roi] se transportera sur lieu, sans aucun retard, pour y dresser les procès-verbaux nécessaires à l'effet de constater le corps du délit,

sont état, l'état des lieux, et pour recevoir les déclarations des personnes qui auraient été présentes, ou qui auraient des renseignements à donner. Le [procureur du Roi] donnera avis de son transport au juge d'instruction, sans être toutefois tenu de l'attendre pour procéder ainsi qu'il est dit au présent chapitre”. 29 Article 47 of the Criminal Procedure Rules & article 8 of the Police and Criminal Evidence Act 1984, 2023 version. 30 (1) Subject to the provisions of sections 22, 24 and 25, an article referred to in section 20 shall be seized only by virtue of a search warrant issued - (a) by a magistrate or justice, if it appears to such magistrate or justice from information on oath that there are reasonable grounds for believing that any such article is in the possession or under the control of or upon any person or upon or at any premises within his area of jurisdiction; or (b) by a judge or judicial officer presiding at criminal proceedings, if it appears to such judge or judicial officer that any such article in the possession or under the control of any person or upon or at any premises is required in evidence at such proceedings”.

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[71] In the United States of America, Article 41(b) of the "Federal Rules of Criminal Procedure 2021" also provides that a search warrant is issued by the Court at the request of a competent law enforcement officer31. The judge who issues the search warrant must be neutral and detached32. [72] In England, a search warrant is issued after a hearing at which the applicant is present, either in person or remotely, during or after working hours33. Judges are assisted by a legal professional, and there are areas where judges or courts are responsible solely for this task34. One of the issues identified by the Law Reform Commission in this country is that the regular work of the courts can be disrupted by the process of issuing search warrants35, and delays in issuing them can result in the loss of evidence36. [73] The Court notes that one of the reasons why some of the aforementioned countries require search warrants from the Court is due to a lack of confidence in the professionalism of law enforcement agencies. In the case of Park Ross vs. Director, Office for Serious Economic Offences, the Constitutional Court of South Africa stated that the importance of granting the Court the

31 At the request of a federal law enforcement officer or an attorney for the government: “(1) a magistrate judge with authority in the district—or if none is reasonably available, a judge of a state court of record in the district—has authority to issue a warrant to search for and seize a person or property located within the district; (2) a magistrate judge with authority in the district has authority to issue a warrant for a person or property outside the district if the person or property is located within the district when the warrant is issued but might move or be moved outside the district before the warrant is executed; (3) a magistrate judge—in an investigation of domestic terrorism or international terrorism—with authority in any district in which activities related to the terrorism may have occurred has authority to issue a warrant for a person or property within or outside that district […]”. 32 Case Coolidge v. New Hampshire, 403 U.S. 443 (1971), para 1, https://supreme.justia.com/cases/federal/us/403/443/ 33 “No search warrant can be granted without a private hearing in the presence of the applicant. An applicant need not be physically present: hearings may take place in person, by live link or over the telephone. These hearings will usually take place during court hours, but if the application is particularly urgent it can be heard outside court hours”; UK Law

Commission Report No 396, search warrant, 7 October 2020, p.129, para 5.70. 34 “The Justices Clerks Society stated that in the South-East region applicants book themselves in for a hearing using an online diary and then email the application to the court. The application is then held by telephone with a justice supported by a legal adviser, who deal with no other types of business”; ibidem, para 5.88. “The West London Magistrates’ Bench informed us that West London has dedicated search warrant courts. A single magistrate hears applications from across London during 30-minute telephone slots which must be booked in advance. The magistrate will read emailed applications and question the applicant during a telephone conference in which a legal adviser also participates. The legal adviser can note additional information provided by the applicant and make minor amendments to the search warrant. The West London Magistrates’ Bench commended the dedicated search warrant court model for saving police and court time”; ibidem, para 5.87. 35 “[…] The second issue, as noted above, is the impact on the running of the courts. Court business may be disrupted and the courts may be put under pressure to deal with warrant applications with undue haste [ …]”; ibidem, para 5.101. 36 “[…] The longer it takes to obtain and execute a search warrant, the higher the risk of evidence being lost and the longer the period of potential offending and therefore harm being caused to members of the public”; ibidem, para 5.129.

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authority to issue a search warrant is to act as a safeguard between the citizen and the investigating agencies, ensuring that the reasons provided by the agency requesting the search warrant are valid37, and to prevent undue interference with citizens' rights by the investigating agencies38. [74] In McDonald v. United States, the Supreme Court held that the right to privacy is too important to be left in the hands of investigating and prosecuting authorities, especially the police, whose use of such powers is not always trusted39. Similarly, in United States v. United States District Court, the Court found that leaving the power to issue search warrants with investigators could result in searches being limited to incriminating evidence, thereby undermining the protection of the right to privacy40. [75] It is clear from the examples provided of practices in various countries that each nation establishes a system it deems appropriate, taking into account available resources, the structure of judicial institutions, the need to expedite the process of gathering evidence, the level of trust in investigating and prosecuting authorities, and other factors. The Court notes that the primary purpose of a search warrant issued by the Court is to prevent investigating authorities from violating the rights of citizens. This underscores that the most important aspect is respecting

the rights of the citizen being searched, ensuring that the search is not used as a pretext or excuse to infringe upon the rights guaranteed by the Constitution. The fact that a search warrant is issued by a particular body is not, in itself, a constitutional right. In other words, whether the search warrant is issued by the court or another authority, the responsibility lies with the body conducting the search to act professionally and in accordance with the law. [76] The Court notes that the mere fact that a search warrant is issued by the court does not necessarily prevent the person conducting the search from violating the rights of the individual being searched. In the case of Ernest et al. v. the Belgian Government before the European Court of Human Rights, the applicants argued that, despite the search being authorised by the investigating judge, the investigating authorities raided their home and failed to respect their right to privacy. Personal data was taken without being itemised, and they were not informed of its disappearance or what it was used for. The court found that the search warrant had been issued without specifying the offence committed or suspected, leaving those being searched to be informed in general terms without clarification of when the search would end, where it would be carried out, or what would be seized. Although the search had been authorised by the judge, the

37 Park Ross v Director, Office for Serious Economic Offences 1995 (2) SA 148 (C) at 172, https://www.saflii.org/za/cases/ZACC/2000/12.pdf 38 Case of National Unions of South African Students v Divisional Commissioner South African Police 1971 (2) SA 553 (C). 39 “It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing, and history shows that the police acting on their own cannot be trusted […]”; McDonald v United States, 335 U.S. 451, 455-456, 69 S. Ct 191, 195-96, 93 L.Ed. 153, 158 (1948), https://supreme.justia.com/cases/federal/us/335/451/ 40 “[ …] unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy […]”; United States v United States District Court, 407 U.S. at 317, 92 S. Ct 2136, 32 L.Ed. 2d at 766, https://www.law.cornell.edu/supremecourt/text/407/297.

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Court concluded that it was disproportionate to the intended purpose and thus in violation of Article 8 of the European Convention on Human Rights41. [77] The Court finds that the above case highlights that the mere fact that a search warrant is issued by the court does not guarantee the protection of the constitutional rights of the person being searched. Instead, the Court asserts that, to ensure the rights of the individual are upheld during the search, there must be a law that clearly outlines the rights to be respected. Furthermore, the law must detail how these rights are to be enforced by the relevant authorities, the scope of their powers, and the procedure for a citizen to demonstrate before the courts that the provisions of the law have been violated, allowing for corrective measures to be taken. [78] This direction, which emphasizes that appropriate laws and established measures for their enforcement are necessary when conducting searches, aligns with the stance upheld by the European Court of Human Rights in the case of Funke, Crémieux, and Miaihle v. France. The Court noted : "Serious difficulties arise from the extent and complexity of banking networks and financial circuits, as well as the numerous possibilities for international investments facilitated by the relative permeability of borders. The Court therefore recognizes that certain measures, such as house searches and seizures, may be necessary to establish material evidence of foreign exchange offences and to prosecute the perpetrators where appropriate. However, legislation and practices in this area must provide adequate and sufficient safeguards against abuse42."

41 “116 […] la Cour, rappelant qu'aucune infraction n'était reprochée aux requérants, se doit de constater que les différents mandats de perquisition étaient rédigés en termes larges [ …] En effet, le conseiller instructeur ordonna, le 23 juin 1995, la série des perquisitions « à l'effet d'y rechercher et d'y saisir tous documents et objets utiles à l'instruction » (paragraphe 13 ci-dessus), sans aucune limitation. Ces mandats de perquisition, qui ne donnaient aucune information sur l'instruction en cause, sur les lieux précis à visiter et sur les objets à saisir, octroyaient ainsi de larges pouvoirs aux enquêteurs […] Un grand nombre d'objets, dont des disquettes informatiques et des disques durs des ordinateurs des requérants, furent effectivement saisis; le contenu de certains documents et supports magnétiques fut copié. En outre, le Gouvernement admet que les requérants ne reçurent pas d'information sur les poursuites qui ont rendu l'opération nécessaire. Ils ont ainsi été laissés dans l'ignorance quant aux motifs concrets des perquisitions effectuées chez eux.

117. Au vu de tout ce qui précède, [ …] la Cour estime que les perquisitions n'ont pas été proportionnées aux buts légitimes recherchés. Il y a donc eu violation de l'article 8 de la Convention; Ernest et autres c. Belgique, (Requête no 33400/96), 15/10/2003, para 116-117”, https://hudoc.echr.coe.int/fre# {%22itemid%22: [%22001-65779%22]}. 42 “[…] les États rencontrent de sérieuses difficultés résultant de l’étendue et de la complexité des réseaux bancaires et des circuits financiers ainsi que des multiples possibilités de placements internationaux, facilitées par la relative perméabilité des frontières. La Cour reconnaît donc qu’ils peuvent estimer nécessaire de recourir à certaines mesures, telles les visites domiciliaires et les saisies, pour établir la preuve matérielle de délits de change et en poursuivre le cas échéant les auteurs. Encore faut-il que leur législation et leur pratique en la matière offrent des garanties adéquates et suffisantes contre les abus […]”; urubanza Crémieux c. France, Requête n° 11471/85, 25 février 1993, para39, https://justice.pappers.fr/decision/ca6a962984423bde369ab76a694fb6cc?q=Cr%C3%A9mieux%20c.%20 France,% 20Requ%C3%AAte%20n%C2%B0%2011471/85, %2025%20f%C3%A9vrier%201993.

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[79] This direction was reaffirmed in other cases, including Ernest and others v. the Belgian Government, mentioned above43, and Klass and others v. Germany44. The provisions of the law must be clear, detailed, and establish safeguards against potential abuse45. [80] In the Colon v. Netherlands case, the European Court of Human Rights found that a search warrant issued by the Prosecution, as permitted by Article 52 of the Arms and Ammunition Act, was not an issue. The most important factor is that there are laws governing what must be observed during the search period, and that these laws have been followed. This includes explaining why the warrant was issued, how it will be executed, determining the scope of the search, and ensuring that the warrant does not exceed the time limits set by the law46. The issue presented to the Court in this case involved a person who argued that in a part of Amsterdam known for low security, the Prosecutor had been granted the authority to infringe upon his right to privacy without a judge's approval, which he claimed violated Article 8 of the European Convention on Human Rights47. [81] In this case, the Court pointed out that there are various cases where it has held that, although it is preferable for a warrant to be issued by a judge when interfering with the right to

43 Ibidem, para 114. 44 Case of Klass et Autres c. Allemagne, Requête n° 5029/71), 6/09/ 1978, para 50, https://hudoc.echr.coe.int/fre?i=001-62068 45 Case of Kruslin v. France, no 11801/05, 24 April 1990, para. 36, https://www.google.com/search?q=Kruslin+v.+France%2C+no+11801%2F05%2C+24+April+1990&rlz= 1C1GCEU_en -GBRW1045RW1046&oq=Kruslin+v.+France%2C+no+11801; n’urubanza Petri Sallinen v. Finland, no 50882/99, 27 September 2005, para 90, https://www.stradalex.eu/en/se_src_publ_jur_eur_cedh/document/echr_50882-99. 46 In areas that have been designated by the Burgomaster as security risk areas in accordance with section 151b, subsection 1 of the Municipalities Act, the public prosecutor may order that any individual can be subjected to a search of his clothing to establish whether he has firearms, ammunition or offensive weapons in his possession. The public prosecutor’s order shall describe the designated area and state the order’s period of validity, which may not exceed twelve hours. The order shall also explain the facts and circumstances that form the basis for concluding that it is necessary to exercise the power to subject any individual to a search of his clothing to establish whether he has weapons or ammunition in his possession […] given the legal framework surrounding such searches and above all the fact, as apparent, that they were effective for their intended

purpose, the Court finds that the reasons given by the Government are “relevant” and “sufficient”; Colon v. Netherlands (dec.), n° 49458/06, 15/05/2012, para 93 & 95. https://hudoc.echr.coe.int/app/conversion/docx/?library=ECHR&id=001- 111347&filename=COLON%20v.%20THE%20NETHERLANDS.docx&logEvent=False. 47 “The applicant complained that the public prosecutor had been given the power, within the part of Amsterdam city centre designated as a security risk area and for up to twelve hours at a time, to invade his privacy without any form of prior judicial control. He argued that this constituted a violation of Article 8 which, in its relevant part, provides as follows: 1. Everyone has the right to respect for his private [...] life [ ...]; 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”; Ibidem, para 62.

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privacy, there are circumstances in which this may not be possible. In such cases, a judge's warrant is not required, provided that other adequate safeguards are in place48. [82] In the case of Delta Pekárny A.S. v. The Czech Republic, decided by the European Court of Human Rights, the claiming company argued that the search of its offices was conducted without a search warrant issued by a judge, thus violating its right to privacy as provided for in Article 8 of the aforementioned European Convention on Human Rights49. The Court explained that when national legislation allows a search to be conducted without a judge's warrant, judicial oversight is still necessary, even though countries are permitted to determine what is appropriate. The Court further noted that in cases concerning the protection of individuals from administrative actions that may interfere with the rights guaranteed by Article 8, it has consistently affirmed that the absence of a search warrant issued by a judge is not problematic, provided there is subsequent judicial review50. [83] Similarly, in the case of Modesto v. State of Greece, the public prosecutor had ordered the police to search the applicant's home and office, which were located in different places, to gather essential information about the crime that had been committed51. The applicant claimed that the searches of his home and office were

conducted in violation of his rights under Article 8 of the European Convention on Human Rights52. The case was referred to the European Court of Human Rights, which found that the search warrant issued by the public prosecutor was written in overly general terms. The Court emphasized that in such cases, especially where national law does not provide for prior judicial review, alternative procedures must be established to ensure that

48 “The Court has accepted in past cases that prior judicial control, although desirable in principle where there is to be interference with a right guaranteed by Article 8, may not always be feasible in practice; in such cases, it may be dispensed with provided that sufficient other safeguards are in place”; Ibidem, para 75. 49 “La société requérante allègue que l’inspection effectuée dans ses locaux sans aucun contrôle judiciaire a enfreint notamment son droit au respect du domicile et de la correspondance tel que prévu par l’article 8 de la Convention […]”; Delta Pekárny A.S. c. République Tchèque, no 97/11, 2 octobre 2014, para 62, https://hudoc.echr.coe.int/fre?i=001-146675 50 “Lorsque le droit national habilite les autorités à conduire une perquisition sans mandat judiciaire, la Cour doit redoubler de vigilance, et ce nonobstant la marge d’appréciation qu’elle reconnaît en la matière aux États contractants. Ainsi, dans les affaires concernant la protection des individus contre des atteintes arbitraires de la puissance publique aux droits garantis par l’article 8, elle a eu l’occasion d’affirmer que l’absence d’un mandat de perquisition peut être compensé par un contrôle judiciaire effectif, réalisé ex post facto […]”; Ibidem, para 83. 51 “Le 23 septembre 2010, le procureur près la cour d’appel d’Athènes ordonna à la Direction de la police de l’Attique, dans le cadre d’une

enquête préliminaire conduite dans une affaire concernant S.G. et I.G. ainsi que d’autres personnes qui n’étaient pas nommées, de procéder à des perquisitions à l’adresse de quinze résidences et bureaux situés dans différents endroits à Athènes et dans l’Attique, dont celle du requérant”; Modestou c. Grèce, no 1693/13, 16 mars 2017, para 7, https://hudoc.echr.coe.int/eng?i=001- 171973. 52 “Le requérant allègue que la perquisition effectuée à son domicile privé et professionnel dans le cadre d’une enquête préliminaire a entraîné une violation de l’article 8 de la Convention”; Ibidem, para 25.

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irregularities in the issuance and drafting of the search warrant do not lead to rights violations53. This principle was reaffirmed in the case of Leotsakos v. Greek State54. [84] In another case decided by the European Court of Human Rights, Gutsanovi v. Bulgaria, the plaintiff's house was searched without a warrant issued by a judge, based on the provisions of the country's criminal procedure55. The Court explained that, in such cases, the concern over the absence of a judicial warrant was mitigated by the fact that the Court could later review whether the search was necessary and in accordance with the law56. [85] In the case of Heino v. Finland, the European Court of Human Rights found that the applicant's rights could be violated if they were unable to appeal to the court before or after the search. The inability of a searched person to appeal to the courts after the search to demonstrate flaws in the decision to search or in the way the search was conducted leaves the citizen inadequately protected by the law. In a country governed by the rule of law and democracy, it is their right to seek such protection57. [86] This direction was reaffirmed in the case of Zosymov v. Ukraine, where the European Court of Human Rights found that the Ukrainian Criminal Procedure Code, which stipulated that no person subjected to a search had the right to appeal against the decision to search or the conduct of the search unless they joined their claim with that of the prosecution for the offence which

53 “La Cour constate que le mandat litigieux était rédigé dans des termes généraux [….] Toutefois, dans de tels cas, et en particulier lorsque la législation nationale ne prévoit pas de contrôle judiciaire ex ante factum sur la légalité et la nécessité de cette mesure d’instruction, il devrait exister d’autres garanties, notamment sur le plan de l’exécution du mandat, de nature à contrebalancer les imperfections liées à l’émission et au contenu du mandat de perquisition”; ibidem para 46 & 48. 54 Arrêt Leotsakos c. Grèce, no 30958/13, 4 octobre 2018, para 49, https://www.dalloz- actualite.fr/sites/dalloz- actualite.fr/files/resources/2018/10/affaire_leotsakos_c._gr_ce.pdf. 55 “Dans la présente affaire la perquisition au domicile des quatre requérants a été effectuée sans l’autorisation préalable d’un juge. En effet l’article 161, alinéa 2, du CPP permet aux organes de l’enquête de procéder à de telles perquisitions dans des cas urgents où il existe un danger d’altération de preuves”; Gutsanovi c. Bulgarie, no 34529/10, 15 octobre 2013, para 221, https://hudoc.echr.coe.int/app/conversion/docx/?library=ECHR&id=001- 126982&filename=Case%20OF%20Gutsanovi%20v.%20 Bulgaria%20%5BExtracts%5D.docx&logEvent=False. 56 “La Cour a déjà eu l’occasion d’affirmer que, dans de telles situations, l’absence d’un mandat de perquisition peut être contrecarrée par un contrôle judiciaire ex post

factum sur la légalité et la nécessité de cette mesure d’instruction”; Ibidem para 222. 57 “[…] in the present case the applicant did not have any effective access, a posteriori, to a court to have both the lawfulness of, and justification for, the search warrant reviewed. The applicant's right to respect for her home was thus violated by the fact that there was no prior judicial warrant and no possibility to obtain an effective judicial review a posteriori of either the decision to order the search or the manner in which it was conducted [ …] The situation was aggravated by the fact that the search took place in an attorney's office.

46. The Court therefore concludes that, even if there could be said to be a general legal basis for the impugned measures in Finnish law, that law does not provide sufficient judicial safeguards either before the granting of a search warrant or after the search. The applicant was thus deprived of the minimum degree of protection to which she was entitled under the rule of law in a democratic society”; judgment Heino v. Finland, no 56720/09, 15 February 2011, para 45, https://hudoc.echr.coe.int/eng?i=001- 103394.

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prompted the search, violated the citizen's rights under Article 8 of the European Convention on Human Rights. In this case, the searched person's complaint was dismissed because, after the investigation, the Public Prosecutor's Office failed to file a complaint for many years, which also prevented the searched person from filing a claim that his rights had been violated58. [87] In light of the foregoing explanations of the provisions of the laws of various countries concerning the authority empowered to issue a search warrant, and of the interpretations of various courts on this matter, the Court considers that there is agreement on the following important points: a. The "systems" of the countries are different; in some cases, the search warrant is issued by a special judge in charge of the conduct and follow-up of the investigation, in other cases by the court, and in some cases by the public prosecutor's office. There are also cases where the warrant may be issued by both the court and the public prosecutor's office; b. The fact that the search warrant is issued by one body or another does not, in itself, affect the principles laid down in the Constitution. The main concern is to establish a system that ensures respect for the rights of the citizen who is subject to the search;

c. In order to avoid violating the rights of the person being searched, there must be laws that clearly define what must be respected and preventive measures to guard against abuse; d. There should also be a process for the citizen to report violations of the law to the courts so that they can be addressed. Particularly in countries that do not provide for a warrant to be issued by a judge (contrôle a priori/ex ante factum), there must be subsequent control by the court (contrôle a posteriori/ex post factum). [88] In Rwanda, the National Public Prosecution Authority is empowered to investigate and prosecute crimes throughout the country, based on the provisions of Article 142, paragraph 1, of the Constitution. As the body responsible for conducting and overseeing investigative activities, it is the law that grants the authority to issue a search warrant, as stipulated in Article 55, paragraph 1, and Article 61 of Law No. 027/2019 of 19/09/2019 relating to criminal procedure.

58 “The applicant’s efforts to obtain subsequent judicial review of the lawfulness of the measure were unsuccessful. In particular, as follows from the judgment of 24 December 2004 taken by the Court of Appeal, the relevant complaint could only be brought within the framework of the criminal trial of the case initiated by the police following the disputed visit, in the event that the investigative authority ever brought the case to that stage. In the meantime, by the time the applicant lodged the present application, the relevant criminal proceedings had remained stagnant for several years, and the applicant had not been able to obtain any procedural status in these proceedings, in spite of his numerous efforts. The Court notes that in its recent judgment in the case of Kotiy […] it has already found that a situation where the only possibility for the applicant to challenge the investigator’s conduct had been under Article 234 of the CCP (after the criminal case against him had been committed for trial) was incompatible with Article 8… In particular, it concludes that domestic law did not provide requisite guarantees against arbitrariness in respect of the police’s actions complained of and did not meet the requirement of quality of law for the purposes of the Convention”; judgment Zosymov v. Ukraine, n° 4322/06, 7 July 2016; para 61, https://hudoc.echr.coe.int/eng?i=001- 164467.

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[89] In order to respect the rights of individuals subjected to search and to ensure that there is no abuse, Law No. 027/2019 of 19/09/2019 clearly outlines the requirements that must be observed by those vested with the authority to conduct a search, including : a. To present a valid service card and a search warrant authorizing him to perform such work signed by the competent authority (Article 60); b. The search can neither be conducted before six (6) a.m. nor after six (6) p.m. (Article 55, Paragraph 3); c. The search is conducted in the presence of the representatives of the local authorities of the place of search (Article 55, Paragraph 4); d. The search is conducted in the presence of the suspect or household members unless they are absent (Article 55, paragraph 5); e. If the search is conducted at an office of a person with a private profession, the search is conducted in the presence of that person under search or his or her duly authorized representatives unless they are absent or cannot be found (Article 55, paragraph 6); f. If the person under search is a member of a professional association, the search is conducted in the presence of the representative of the association (Article 55, paragraph 7); g. Unless the person is caught red-handed, an investigator or a prosecutor cannot conduct a strip-search or a body cavity search without prior authorisation of the Chief

Prosecutor of the prosecution organ where he or she works. A strip-search or body cavity search is conducted exclusively by a medical doctor (Article 56, paragraph 2); h. A strip-search or a body cavity search subject may choose a medical doctor, his/her spouse or any other adult person to accompany him or her (Article 56, paragraph 3). i. An investigator or a prosecutor who concludes any search is required to prepare a search statement (Article 55, Paragraph 8), and give a copy thereof to the concerned persons (Article 64). [90] The Court finds that the measures established by Articles 55, 56, 60, and 64 of Law No. 027/2019 of 19/09/2019 are clear and comprehensible in terms of respecting the rights of citizens who are to be searched, as well as in preventing any abuse. Regarding the avenues available for a citizen to demonstrate to the courts any violation of the law's provisions and request correction, Article 43 of the Constitution assigns the courts the responsibility of safeguarding human rights and freedoms. Additionally, Article 23, paragraph two, stipulates that searches must be conducted in the circumstances and manner prescribed by law. [91] The Court finds that when provisions of the law are not respected during a search, the individual who underwent the search can appeal to the courts to assert their violated rights. In this context, Article 76(20) of Law No.

027/2019 of 19/09/2019, relating to criminal procedure, assigns the judge the responsibility to examine any violations of the law that occurred during the investigation when considering complaints about provisional release and detention. The article stipulates that a judge who hears cases on provisional detention has the duty to verify whether the period of detention and other rights of the suspect have been respected during the investigation.

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[92] Additionally, the accused can present to the judge hearing their case any findings they believe to be illegal during the investigation, including those related to the search. If the judge determines that evidence was obtained from an illegal search, they will declare such evidence inadmissible. For a person who has been subjected to a search but for whom no file has been prepared to be brought before the judge, there is the right to seek compensation for the unlawful actions in a civil case. ii. Regarding searches conducted without the issuance of a search warrant [93] Article 55, paragraph 4, of the Law N° 027/2019 of 19/09/2019 relating to criminal procedure reads that if the suspect is caught red-handed or is presumed to have been caught red- handed, the requirement for the investigator to obtain a search warrant or observe search hours may not be complied with. Search is always conducted in presence of the representatives of the local authorities of the place of search. And article 56, paragraph 2, of the same Law stipulates that Unless the person is caught red-handed, an investigator or a prosecutor cannot conduct a strip- search or a body cavity search without prior authorisation of the Chief Prosecutor of the prosecution organ where he or she works. A strip-search or body cavity search is conducted exclusively by a medical doctor. [94] Article 10, paragraph 3, of

the law n° 12/2017 of 07/04/2017 establishing the Rwanda Investigation Bureau and determining its mission, powers, organisation and functioning provides that RIB may search any person or property, enter a building or premises without a warrant for the following reasons: a) reasonable grounds for suspicion that a criminal act is being committed or is to be committed; b) reasonable grounds suggesting that the building or premises contain an object used in the commission of criminal act or useful for criminal investigations; c) reasonable evidence that the criminal suspect is in the location and has to be arrested. In that case, a statement for the search is prepared and a report is also made stating the grounds for search without a warrant […]. [95] The court finds that conducting a search without a warrant aims to prevent delays in its issuance from hindering the search's purpose. Neither the Prosecutor nor the investigator should overlook evidence of a crime that has been committed or is about to be committed. On the contrary, it is their duty to consider and obtain any unexpected evidence indicating that a crime has been committed, is currently being committed, or is being planned. [96] The court finds that investigators are often called upon in emergencies; in some cases, they are asked to accompany the police during interventions at specific locations or to dismantle

traps set by individuals attempting to commit crimes. The urgency of these actions is what led the Legislator to provide that the investigator or the Prosecutor may not have the time to apply for a search warrant from the authority responsible for issuing it if the person to be searched is caught red-handed, appears to be caught red-handed, or if one of the reasons mentioned in Article 3 of Law No. 12/2017 of 07/04/2017 applies.

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[97] The court finds that, to prevent interference with the rights of a person being searched without a warrant, the law stipulates that there must be a statement for any search conducted59. For individuals who are caught red-handed or appear to be caught red-handed, the search is carried out in the presence of local authorities, and the investigator is required to prepare a report detailing the reasons for conducting the search without a warrant. The court concludes that these measures established by the Legislator are intended to prevent abuse by those responsible for conducting searches. As explained above, when there is a violation of the law, the person subjected to the search has the right to appeal to the courts. [98] Based on the foregoing laws and elucidations, the Court finds that the issuance of a search warrant by the Public Prosecution instead of the Court, or the existence of circumstances where a search can be conducted without a warrant, does not conflict with Articles 13, 14, 23, 24, 29, 43, and 61 of the Constitution. b. With regard to ordering for information and taking statements from any person suspected of having information that can help an investigation [99] Article 10, subparagraph 8, of the law n° 12/2017 of 07/04/2017 establishing the Rwanda Investigation Bureau and determining its mission, powers, organisation and functioning reads that RIB has the

powers to order for information and take statements from any person suspected of having information that can help an investigation. [100] Whereas, article 29, paragraph 1, subparagraph 2, of the Constitution provides that Everyone has the right to due process of law, which includes the right: […] to be presumed innocent until proved guilty by a competent Court. [101] The Court notes that the principle of the right to due process of law was reiterated in the case of Kabasinga Florida, decided by this Court on 04.12.2019. In this case, the Court explained that the components of this right are not all listed in Article 29 of the Constitution but indicated that these rights fall into two categories: a. Due process of law is based on procedure, meaning a set of rules that must be observed in the judicial process, in accordance with the principles established by law; b. Due process of law is based on the provisions of the law, which prohibit the enactment of laws or other irrational measures that violate the rights of citizens60. [102] The Court finds that Article 29 of the Constitution does not distinguish between these two types of rights to due process of law, nor does it specify when they begin to be exercised. The representatives of the Government of Rwanda assert that the right to due process of law begins before the courts, but their conclusions do not provide a basis for this claim. In the Kabasinga Florida case mentioned above, the Court explained that in criminal cases, the right to due process

59 Article 55, paragraph 8, of the Law N° 027/2019 of 19/09/2019 relating to criminal procedure reads that an investigator or a prosecutor who concludes any search is required to prepare a search statement. 60 Judgment RS/INCONST/SPEC 00003/2019/SC, Kabasinga Florida, rendered by the Supreme Court on 04/12/2019, paragraph 13.

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of law begins with investigative activities and continues through criminal investigations, trials, and sentencing for crimes as provided by criminal laws61. [103] Therefore, the Court finds that the right to due process of law particularly the rights to be informed of the nature and reasons for the charges, to defense and legal representation, and to be presumed innocent until proven guilty by a competent court does not begin with the filing of a claim in court, as asserted by the representatives of the Government of Rwanda. The Court holds that the presumption of innocence until a final decision by the competent authority must be upheld throughout all judicial procedures until the final ruling is made. This principle, which places the burden of proof on the party alleging the crime, applies to all institutions62 (including the Public Prosecution). [104] In relation to this case, the issue that must be addressed is whether the provisions of Article 10, paragraph 8, of Law No. 12/2017 of 07/04/2017, establishing the Rwanda Investigation Bureau and determining its mission, powers, organization, and functioning, contain any violation of the principle of the right to due process of law, particularly the right to be presumed innocent until proven guilty by a competent court. [105] The court finds that, although the term "information" referred to in Article 10, paragraph 8, of Law

No. 12/2017 of 07/04/2017, as translated from Kinyarwanda into English and French, should not be taken in isolation or given a basic or generic definition linking it to the press or journalists. When enacting that article, it was not the intention of the Legislator to allow the Investigation Bureau to continue to seek out individuals who inform journalists about the commission of crimes. This is why the term "information" should be interpreted in conjunction with the phrase "that would help in the investigation" also appearing in that article. [106] The Court notes that there are at least three ways in which the prosecution obtains information about the commission of a crime: complaints from victims, investigations, and denunciations. During an investigation based on one of these methods, the Investigation Bureau may find that there are other sources from which it can obtain more detailed information or additional evidence that can help the investigation achieve its objectives. These objectives include establishing the crime committed, identifying the persons involved, determining where and when it was committed, and understanding the victims or other consequences. This explanation or evidence, intended to make the investigation more efficient and effective, is what the legislator refers to as "information." [107] The fact that the Investigation Bureau can question any suspect to obtain information about a crime is not unique to Rwanda. In Burundi, Article 10(4) of the Code of Criminal Procedure provides that investigators may question persons they believe may have information about a crime that has been committed63. In Singapore, Article 22 of the Criminal Procedure Act gives

61 Ibidem, paragraph 14. 62 Judgment Henrikas Daktaras v Lithuania, n° 42095/98, European Court of Human Rights (Third Section) sitting on 11 January 2000, para 6, https://hudoc.echr.coe.int/fre?i=001-5987 Michel Franchimont, Manuel de procédure pénale, Bruxelles, Larcier, 2012, p. 1132. 63 Art. 10, al.4 du Code de Procédure Pénale (Loi no 1/09 du 11/05/2018): “[…] Ils procèdent à l’audition des personnes susceptibles de donner des renseignements sur l’infraction et sur ses auteurs. Ils interrogent ces auteurs et recueillent leurs explications”.

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investigators the power to question any person suspected of having information about an offence committed, with the person being obliged to provide the information unless it is deemed incriminating64. This is also the case in Burkina Faso65, Ivory Coast66, and other countries not listed here. [108] The Court also finds that the phrase "any person" mentioned in Article 10, paragraph 8, of Law No. 12/2017 of 07/04/2017 refers to any individual not being prosecuted for the alleged crime, who possesses information that would aid in the investigation process. It does not refer to the suspect of the crime, as claimed by Murangwa Edward, since the suspect is interrogated by the Investigator as the person required to provide explanations regarding the charges brought against them. This distinction is clearly made by the Legislator in Article 45 of Law No. 027/2019 of 19/09/2019 relating to criminal procedure. Paragraph 2 of this article reads that: "An investigator or prosecutor interrogates a suspect and makes a written record of the statement made by the suspect. Interrogation is conducted in the language the suspect understands well." And paragraph 3 of the same article stipulates that The investigator or prosecutor may also interrogate any person presumed to have some clarification and requests him or her to give testimony under oath in the manner provided for under Article 47 of this Law. The phrase "any person" mentioned in this paragraph is also the same "any person" referred to in Article 10, Section 8, of Law No. 12/2017 of 04/07/2017. [109] In the event that the suspect is interrogated by the Investigation Bureau or the Public Prosecution regarding the commission of a crime, one of the rights they have, as provided by

64 Art. 22 of the Criminal Procedure Code 2010: “(1) In conducting an investigation under this Part, a police officer, or a forensic specialist acting in the course of his or her duty as such in accordance with the written authorisation of the Commissioner under the Police Force Act 2004 and the lawful directions of the police officer or law enforcement officer he or she assists, may examine orally any person who appears to be acquainted with any of the facts and circumstances of the case — (a) whether before or after that person or anyone else is charged with an offence in connection with the case; and (b) whether or not that person is to be called as a witness in any inquiry, trial, or other proceeding under this Code in connection with the case. (2) The person examined is bound to state truly what the person knows of the facts and circumstances of the case, except that the person need not say anything that might expose the person to a criminal charge, penalty or forfeiture”. Available on https://sso.agc.gov.sg/Act/CPC2010. 65 Art. 251-10, al. 1 et 2, du Code de Procédure Pénale 2019: “(1) L’officier de police judiciaire peut appeler et entendre toute personne susceptible de fournir des renseignements sur les faits ou sur les objets et documents saisis. (2) Les personnes convoquées par lui sont tenues de comparaître et de déposer. Si elles ne satisfont pas à cette obligation,

avis en est donné au procureur du Faso qui peut les contraindre à comparaître par la force publique”, https://sgbv-ihrda.uwazi.io/fr/entity/i41i84se8d?page=22. 66 Art. 61 du Code de Procédure Pénale 2018: “L'officier de police judiciaire procède à l' enquête. Il entend toute personne susceptible de fournir des renseignements sur les faits et toutes celles qui se prétendent lésées par l'infraction. Il procède aux constatations utiles”. Art. 62 du même Code: “La personne convoquée par l'officier de police judiciaire est tenue de comparaître et de déposer. Si la personne convoquée ne satisfait pas à cette obligation, avis en est donné au procureur de la République qui peut la contraindre à comparaître par la force publique”, https://www.caidp.ci/uploads/997a8149124ebaffe41282e96908d822.pdf.

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Article 54, paragraph 2 of Law No. 027/2019 of 19/09/2019, is the right to silence (droit au silence). This means that the suspect is not among those who are obligated to provide information referred to in paragraph 8 of Article 10 of Law No. 12/2017 of 07/04/2017. [110] Therefore, the Court finds that if the Investigation Bureau were to parade suspects before the media to be questioned about the crime they are charged with, while wearing handcuffs, as claimed by Murangwa Edward and his counsels, the Investigation Bureau would not be acting on the basis of Article 10, paragraph 8, of Law No. 12/2017 of 07/04/2017. There is no provision in that article stating that the Investigation Bureau can present suspects to journalists for questioning them or to obtain information that would assist in the investigation. If such a practice exists, the Court finds that it cannot be rectified by declaring the aforementioned article inconsistent with the Constitution. [111] However, the Court advises that while investigating authorities may work with the media to inform the public about ongoing investigations, they must do everything possible to respect the principle that a person is presumed innocent until proven guilty. This was confirmed in the case of Allenet De Ribemont v. France, where the European Court of Human Rights indicated that the principle of the presumption of innocence does

not prevent authorities from informing the public about an ongoing investigation, but they must do so carefully to avoid violating the principle of presumption of innocence when guilt has not yet been proven67. [112] In relation to what Murangwa Edward and his counsels argue, even though this Court finds that Article 10(8) of Law No. 12/2017 of 04/07/2017 referred to above is not inconsistent with the Constitution, their request for the Court to order the deletion of the term "to order" from the article and the addition of the phrase "except the suspect" to the phrase "any person" in order to protect the right to due process of law is beyond the scope of this Court. The Court notes that this matter does not concern a petition for the unconstitutionality of a provision of law, but rather relates to the interpretation of the content of the law, which falls outside this Court's jurisdiction. In previous cases, the Court has, on its own initiative, acted to fill gaps left in legal provisions when part of a law was deleted68, or provided recommendations on what should be addressed or improved in a legal article when necessary, but it has not issued orders regarding such matters69. [113] Therefore, a litigant may petition the Constitutional Court to amend, remove, or add words in a law, based on dissatisfaction with the terms or phrases used, or simply because they believe the legislator did not use the appropriate terms.

67 “Freedom of expression, guaranteed by Article 10 (art. 10) of the Convention, includes the freedom to receive and impart information. Article 6 para. 2 (art. 6-2) cannot therefore prevent the authorities from informing the public about criminal investigations in progress, but it requires that they do so with all the discretion and circumspection necessary if the presumption of innocence is to be respected”; Allenet de Ribemont v. France (Application no. 15175/89), 10 February 1995, para 38, https://hudoc.echr.coe.int/eng?i=001-57914. 68 For example, see judgment RS/INCONST/SPEC 00002/ 2018/SC, Mugisha Richard, rendered by the Supreme Court on 24/04/2019, paragraphs 55 and 132; and judgment RS/Inconst/Pén.0001/08/CS, Murorunkwere Spéciose, rendered by the Supreme Court on 26/09/2008, paragraph 31. 69 For example, see judgment RS/INCONST/SPEC 00001/ 2019/SC, Murangwa Edward, rendered by the Supreme Court on 29/11/2019, paragraph 105.

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[114] Based on the foregoing elucidations, the Court finds that the provisions of Article 10, paragraph 8, of Law No. 12/2017 of 07/04/2017 establishing the Rwanda Investigation Bureau and determining its mission, powers, organization, and functioning do not in any way prejudice the principle of the right to due process of law as provided for by Article 29, paragraph one, subparagraph 2° of the Constitution. [115] The Court finds that Article 10, paragraphs 3 (a), (b), and (c), as well as paragraphs 5, 7, and 8 of Law No. 12/2017 of 04/07/2017 establishing the Rwanda Investigation Bureau and determining its mission, powers, organization, and functioning, and Articles 38, 55, 56, 57, 60, 61, and 70 of Law No. 027/2019 of 19/09/2019 relating to criminal procedure do not contain any inconsistency with Articles 13, 14, 23, 24, 29, 43, and 61 of the Constitution of the Republic of Rwanda. II.2. Whether the terms "reasonable grounds," "substantial evidence," and "serious grounds," as used in Article 10 of Law No. 12/2017 of 04/07/2017 establishing the Rwanda Investigation Bureau and determining its mission, powers, organization, and functioning, particularly in paragraphs 3, a, b, and c, should be interpreted in the interests of the law [116] Murangwa Edward and his counsels argue that the terms "reasonable grounds," "substantial evidence," and "serious grounds," used in Article 10,

Paragraph 3 (a), (b), and (c) of Law No. 12/2017 of 07/04/2017, as mentioned above, were written in such a general manner that it is difficult for the reader to know what they exactly mean. They contend that this vagueness has become an excuse for the Investigation Bureau and the Public Prosecution to conduct warrantless searches. They believe that these terms should be explicitly defined to provide clarity on what is exactly meant by "reasonable grounds," "substantial evidence," and "serious grounds." [117] They argue that one of the principles that the Government of Rwanda is committed to upholding is enshrined in Article 10, paragraph four, of the Constitution, which emphasizes building a State governed by the rule of law and a pluralistic democratic government. They assert that no citizen's rights should be violated except in the manner and procedures prescribed by Article 41 of the Constitution. Article 41 stipulates that human rights are subject only to limitations provided by law aimed at ensuring the recognition and respect of other people's rights and freedoms, as well as public morals, public order, and social welfare, which are characteristic of a democratic society. [118] They further state that their intention is not to ask the Court to declare that the terms "reasonable grounds," "substantial evidence," and "serious grounds" used in Article 10, paragraph 3 (a),

(b), and (c) of Law No. 12/2017 of 07/04/2017 are inconsistent with the Constitution, as mentioned above. Instead, they request the Court to rely on the provisions of Article 73 of Law No. 30/2018 of 02/06/2018, which establishes the jurisdiction of the courts, in order to interpret these terms, should the legislator not yet amend this article. [119] They assert that the direction the Supreme Court could take in the interest of the law would be highly beneficial in protecting the right to privacy and the right to due process for the accused and their family. They further argue that, while they acknowledge that rights may be reduced or suspended when necessary, the Constitution and the international covenants that Rwanda has signed require that such actions be carried out in a manner that respects the image of a democratic country.

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[120] They assert that the word "direction" in Article 73 of the aforementioned Law No. 30/2018 of 02/06/2018 should be understood as referring to practice. Therefore, they ask this Court to declare that this practice, which characterizes the institutions of intelligence, criminal investigation, and prosecution during warrantless searches, should be stopped. They request that this Court refer to the following directions adopted by other courts to provide a proper interpretation of the terms mentioned in Article 10, paragraph 3 (a), (b), and (c) of Law No. 12/2017 of 04/07/2017 : a. To assess whether the provisions of the law allowing for warrantless searches are written in such a general manner that they would affect the right to privacy of an individual and their family, and to determine whether it is necessary to conduct such searches in certain cases70; b. To strike a balance between the right to privacy and the government's responsibility to maintain public order and combat crime71; [121] To assess whether the infringement of the rights to privacy and dignity is reasonable and justifiable in an open and democratic society. The Court should also consider the following five measures: 1) the nature of the right; 2) the importance of the purpose of the limitation; 3) the nature and extent of the limitation; 4) the relation between the limitation and its purpose; 5) and

whether there are less restrictive means to achieve the purpose72. [122] They conclude that the Supreme Court has the authority to provide direction in the interest of the law and that the terms "reasonable grounds," "substantial evidence," and "serious grounds" used in Article 10, Section 3 (a), (b), and (c) of Law No. 12/2017 of 07/04/2017 establishing the Rwanda Investigation Bureau and determining its mission, powers, organisation, and functioning are written in such a general manner that their application may lead to the infringement of citizens'

70 Gaertner and Others v Minister of Finance and Others (CCT 56/13) [2013] ZACC 38; 2014 (1) SA 442 (CC); 2014 (1) BCLR 38 (CC) (14 November 2013); Mistry v Interim National Medical and Dental Council and Others (CCT13/97) [1998] ZACC 10; 1998 (4) SA 1127; 1998 (7) BCLR 880 (29 May 1998). “To sum up: irrespective of legitimate expectations of privacy which may be intruded upon in the process, and without any predetermined safeguards to minimise the extent of such intrusions where the nature of the investigations makes some invasion of privacy necessary, section 28(1) gives the inspectors carte blanche to enter any place, including private dwellings, where they reasonably suspect medicines to be, and then to inspect documents which may be of the most intimate kind”. 71 Tinto v Minister of Police (EL18/2012, ECD 318/2012) [2013] Zaecellc 8; 2014 (1) Sacr 267 (ECG) (15 October 2013). [i] “in determining whether an individual's right to privacy has been infringed a balance must be struck between the protection of that right on the one hand and the State's constitutionally mandated task of prosecuting crime on the other”; Van der Merwe v Minister of Police and Another (2530/2018) [2019] Zafshc 118 (11 July 2019). 72 Minister of Police and Others v Kunjana (CCT253/15) [2016] ZACC 21; 2016 (9) BCLR 1237 (CC); 2016 (2) SACR 473 (CC) (27 July 2016): “[…] it must be assessed whether the

infringement of the rights to privacy and dignity is reasonable and justifiable in an open and democratic society… Section 36 of the Constitution governs the situations in which constitutional rights may be limited”. “It enjoins a court to balance five relevant factors, which are: the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and whether there are less restrictive means to achieve the purpose”.

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rights as established by the Constitution. Therefore, they request that this Court, based on the directions provided above, offer an interpretation of those terms. [123] The representatives of the Government of Rwanda submit that the "change of direction in the interest of the law" is defined in Article 65 of Law No. 30/2018 of 02/06/2018 determining the jurisdiction of courts. They argue that the term "direction" should be understood as the decision of the Court in which it analysed the issue presented to it. They further explain that there is no existing direction that can be challenged or altered, and they do not see where Murangwa Edward, who initiated this petition, derives the capacity to do so, as the law provides that such a petition can only be initiated by the Bar Association or the National Public Prosecution Authority. Therefore, they request this Court to declare that the petition should not be admitted for consideration because it was filed in an illegal manner.

DETERMINATION OF THE COURT [124] Article 65 of the Law N° 30/2018 of 02/06/2018 determining the jurisdiction of courts, is about petitions relating to the change of direction taken by courts in the interest of the law, and its paragraphs 1 and 2, read that The Supreme Court has jurisdiction to review the direction of the final judgements taken by the courts to protect the law and give direction on request by the Rwanda Bar Association or the National Public Prosecution Authority. The representative of the Rwanda Bar Association or the National Public Prosecution Authority indicates in the submissions contained in the statement of the application, his/her criticism against the direction taken by the court and the reasons for his/her application for change of such direction. [125] Article 73 of the Law N° 30/2018 of 02/06/2018 determining the jurisdiction of courts reads that The petition to change direction in the interest of the law is examined based on the documents submitted to the court. However, when the court finds that it needs more information, it can summon the applicant or any other person to provide some clarification. The court may, upon request, also authorize amicus curiae experts in the hearing. The decision of the court highlights the challenges of the direction in force and gives a new direction. [126] Murangwa Edward argues that, while the Legislator has not

yet amended Article 10, paragraph 3, a, b, and c of Law No. 12/2017 of 07/04/2017, the Court should rely on the provisions of Article 73 of Law No. 30/2018 of 02/06/2018, determining the jurisdiction of courts, to provide an interpretation of the terms used in the aforementioned paragraphs of Article 10. This, he asserts, would prevent the user from resorting to analogy. [127] The Court finds that Murangwa Edward's request is unrelated to what is outlined in Article 73, which explains the procedure for petitions mentioned in Article 65 of Law No. 30/2018 of 02/06/2018. The direction referred to in those articles pertains to decisions made by the courts. Additionally, the Court notes that petitions to change court directions in the interest of the law, as referenced in the aforementioned Articles 65 and 73, are special petitions that follow a distinct procedure. These petitions can only be initiated by the institutions specified by law and cannot be

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examined in a petition seeking to declare a law or its provisions unconstitutional. In the case RS/INCONST/RCOM 00001/2022/SC of Fast Truck Interior v. Hardware Ltd, decided on 19/05/2023, this Court explained that the purpose of such petitions is to repeal provisions of the law deemed unconstitutional so that, if the Court finds a law contrary to the Constitution, it may be repealed73. Therefore, the intention is not to interpret the terms contained in the law. [128] In light of the foregoing elucidations, the Court finds that Murangwa Edward's petition is unrelated to the petition seeking to declare a law unconstitutional and, therefore, cannot be considered. III. DECISION OF THE COURT [129] Holds that the petition initiated by Murangwa Edward seeking to declare Article 10, Paragraph 3 (a, b, and c), paragraphs 5, 7, and 8 of Law No. 12/2017 of 07/04/2017 establishing Rwanda Investigation Bureau and determining its mission, powers, organisation, and functioning and articles 38, 55, 56, 57, 60, 61, and 70 of Law No. 027/2019 of 19/09/2019 relating to criminal procedure inconsistent with Articles 13, 14, 23, 24, 29, 43, and 61 of the Constitution of the Republic of Rwanda, lacks merit. [130] Holds that Article 10, Paragraph 3 (a, b, and c), paragraphs 5, 7, and 8 of Law No. 12/2017 of 07/04/2017 establishing Rwanda Investigation Bureau and determining its mission,

powers, organisation, and functioning and articles 38, 55, 56, 57, 60, 61, and 70 of Law No. 027/2019 of 19/09/2019 relating to criminal procedure are not inconsistent with Articles 13, 14, 23, 24, 29, 43, and 61 of the Constitution of the Republic of Rwanda. [131] Holds that the petition initiated by Murangwa Edward requesting the Court to provide a direction in the interest of the law with regard to the terms "reasonable grounds," "substantial evidence," and "serious grounds" used in Article 10, Paragraph 3 (a, b, and c) of Law No. 12/2017 of 07/04/2017 establishing the Rwanda Investigation Bureau and determining its mission, powers, organisation, and functioning, should not be considered.

73 Judgment RS/INJUST/INCONST/RCOM 00001/2022/SC, FAST TRUCK INTERIOR v. HARDWARE LTD, Rendered by the Supreme Court on 19/05/2023, paragraph 28.